How to Sue Your Employer

A variety of laws, both federal and state, can be relevant in the workplace. There are federal and state laws that prohibit discrimination against an employee on the basis of their membership in a protected class. There are federal and state laws that prohibit sexual harassment. State contract law may apply in situations in which there is a contract of employment between an employee and employer.

If a person is injured on the job, their state’s workers compensation law may provide them with an avenue for seeking compensation. Or state personal injury law may be relevant, depending on the circumstances of the event that causes the injury..

If an employee is involved in efforts to establish a union bargaining unit in their place of employment, then federal labor law plays a role. It establishes the ground rules that govern what employees and employers can and cannot do during a union organizing campaign.

And, if there is a union collective bargaining agreement already in force at a workplace, then federal labor law regulates the collective bargaining process. Also, before an employee can file a lawsuit in a civil court, they may need to pursue their claim through union grievance procedures. Or, a worker may be working on a project that has a project labor agreement, which defines the rights and duties of the employer and employees on construction sites.

On What Grounds Can I Sue My Employer?

An employee may be able to sue their employer under certain circumstances. Claims against an employer might involve the following areas of the law:

• Sexual harassment: The law recognizes two types of sexual harassment that occur in workplaces. The first is what is called “hostile work environment sexual harassment.” This is the harassment that results when people in a workplace engage in conduct and use language in a way that prevents other employees from performing the duties of their job. They create a work environment that is hostile to other employees.
  • The second kind of harassment is known as quid pro quo sexual harassment. It occurs when a higher-ranking employee with authority to make decisions about the terms and conditions of another person’s employment demands that the person perform sexual favors as a condition of keeping their job or receiving benefits and perquisites of the job;
• Discrimination in Violation of Title VII of the Civil Right Act of 1964 (Title VII): An employer violates Title VII of the Civil Rights Act of 1964, a federal law, when the employer discriminates against an employee in connection with the terms and conditions of employment becuase of the employee’s membership in a protected class, or factors such as race, color, religion, gender, or national origin. For example, an employer can violate Title VII when the employer deals out negative consequences to an employee who has made a complaint about experiencing discrimination in the workplace;
• Discrimination in Violation of the Americans with Disabilities Act: The Americans With Disabilities Act (ADA) is a federal law that prohibits employers from discriminating against certain individuals on the basis of disabilities. Under the ADA, employers may not take a negative action against an employee, such as terminating their employment or demoting them, because the employee is disabled. The ADA requires an employer to take steps that are reasonable to accommodate an employee with a disability so they can do their job;
• Discrimination in Violation of the Age Discrimination in Employment Act (ADEA): The ADEA is a federal law that makes age-based discrimination illegal. Under the ADEA, people who are 40 or older are protected from being discriminated against because of their age. An employer violates the law when the employer takes a negative employment action, such as terminating employment or suspending an employee because of their age;
• Discrimination in Violation of the Family and Medical Leave Act (FMLA): The FMLA is a federal law that provides certain employees with up to 12 weeks of leave for certain medical reasons. Under the FMLA, employers must continue to provide an employee with health care benefits while they are on leave. The FMLA also protects a person’s job while they are on leave. This means that when the employee ends a period of leave, they must be able to return to the position they had before their leave or an equivalent position. It is illegal to fire an employee for taking under FMLA. It is also illegal to interfere with an employee’s right to take leave under the FMLA;
• Discrimination in Violation of the Equal Pay Act: This federal law requires employers to pay employees equal pay for equal work and to provide the same benefits to all employees, regardless of their gender;
• Discrimination in Violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA): Under USERRA, employers must grant a leave of absence, for up to five years, to employees who are absent from work to perform uniformed duties in the U.S. services. USERRA leave is job-protected leave. This means that when the employee returns to work, they are entitled to the same job position they would have had, if they had been present at their workplace during their period of leave;
• Occupational Health and Safety Regulations: The Occupational Health and Safety Administration is a division of the U.S. Department of Labor. Federal law entitles workers to a workplace that is not hazardous to their health and safety. An employer has a duty to eliminate known health and safety hazards from the workplace. And employees have a right to speak up about threats to their health and safety in the workplace without fear of retaliation.
  Federal law also gives workers a number of rights, such as, for example:
  • • The right to be trained in workplace safety and health in a language that they understand,
    • The right to work with machinery that is is safe;
    • The right to be provided with equipment necessary to make their work safe, If a worker thinks that their working conditions are unsafe or unhealthy, they may file a confidential complaint with OSHA and request an inspection. If possible,a worker should tell their employer about their concerns.

  In addition, OSHA regulations provide that It is illegal for an employer to fire or in any other way retaliate against a worker who complains to OSHA about health and safety in their workplace. If a worker thinks that their employer has retaliated against them, they may file a whistleblower complaint within 30 days of the retaliation with OSHA;

• Workers’ Compensation: Workers’ compensation provides payment to an employee who is injured on the job. Each state has an agency that administers the state’s worker’s compensation laws. Employers must provide workers’ compensation benefits without regard to who may have caused the injury, whether employer or employee.
  • When an employer fails to pay worker’s compensation benefits when they are due, an injured employee may file a claim with their state’s Workers Compensation Board seeking payment. In addition, an employer may not fire or retaliate in any other way against an employee for filing a workers’ compensation claim;
• Illegal Retaliation for Whistleblowing: A “whistleblower” is an employee who reports unethical or illegal conduct by their employer. Most states have laws preventing private companies from retaliating against whistleblowers;
• Breach of Employment Contract: If an employee has a contract of employment with the employer, and the employer breaches the contract, the employee may file a lawsuit for breach of contract. A valid, enforceable contract of employment can be express or implied. For example, an employer’s failure to pay the employee the salary specified in their contract, or withholding some other benefit promised in the contract would be a breach. Or, a person’s employment contract might specify that a person’s employment is to last for a period of time and the employer terminates a person’s employment before the end of the period specified in the contract;
• Fair Labor Standards Act: The Fair Labor Standards Act (FLSA) imposes a number of requirements for employers. FLSA laws require that employers pay their employees at least the minimum wage. There are workers who are exempt from federal minimum wage requirements. Also, employers are supposed to pay their employees overtime pay for time worked in excess of 40 hours per week. Employers must also obey laws regarding child labor.
  • The FLSA provides employees, including the U.S. Department of Labor, to claim various legal remedies from employers for FLSA violations. In many cases, this can allow an employee to recover damages such as back wages and an equal amount in damages for wage or overtime violations;
• Wrongful Termination: An employer wrongfully terminates a worker’s employment if they fire the worker for serving on jury duty or for voting.

Do I Need a Lawyer for Help with a Workplace Dispute?

As you can see, the law affects the workplace in a large number of areas, from discrimination to pay to medical leave. A qualified workplace lawyer should be able to offer sound advice as to what your rights are and how to pursue them. If you believe that your employer has violated the law in any way, you should consult an experienced employment lawyer.