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Lustig & Associates - Employment Law

Hiring

The employment relationship between and employer and an employee begins with the hiring process. At Lustig & Associates, we have helped our clients navigate these waters for decades. The following Federal Laws are just a small sampling of those that we deal with every day:

Federal Equal Employment Opportunity (EEO) Laws

  • Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;

Lustig & Associates, Employment Law
  • the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;

  • the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;

  • Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;

  • Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government;

  • Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and

  • the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these laws. EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies. In addition, numerous state laws exist which also regulate the hiring process.
Discrimination

  • hiring and firing;

  • compensation, assignment, or classification of employees;

  • transfer, promotion, layoff, or recall;

  • job advertisements;

  • recruitment;

  • testing;

  • use of company facilities;

  • training and apprenticeship programs;

  • fringe benefits;

  • pay, retirement plans, and disability leave; or

  • other terms and conditions of employment.

Discriminatory practices under these laws also include:

  • harassment on the basis of race, color, religion, sex, national origin, disability, genetic information, or age;

  • retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;

  • employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual's genetic information; and

  • denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.

Employers are required to post notices to all employees advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.

Note: Many states and municipalities also have enacted protections against discrimination and harassment based on sexual orientation, status as a parent, marital status and political affiliation

Employment Agreements

A written employment contract is a document that you and your employee sign that sets forth the terms of your relationship. You don't have to enter into a written contract with every employee you hire -- in fact, written employment contracts are generally the exception, rather than the rule. In some situations, however, it makes good sense to ask an employee to sign a contract. When it does, we can help you negotiate and draft an employment agreement which will clearly spell out the employee and employer obligations and the rights and remedies of each party. We can advise you on how to protect the companies interests while assuring the employee of his value and the companies commitments to him.

Advantages Of Using Contracts

Employment contracts can be very beneficial if you want control over the employee's ability to leave your business. For example, if finding or training a replacement will be very costly or time-consuming for your company, you might want a written contract. It can lock the employee into a specific term (for example, two years), or it can require the employee to give you enough notice to find and train a suitable replacement (for example, 90 days' notice). While you can't force someone to keep working for you, an employee is likely to comply with the agreement's terms if there's a penalty for not doing so.

Employment contracts might also make sense if the employee will be learning confidential and sensitive information about your business. You can insert confidentiality clauses that prevent the employee from disclosing the information or using it for personal gain. Similarly, a contract can protect you by preventing an employee from competing against you after leaving your company

It is inevitable in every companies life that employees must be terminated. The decision to terminate an individual’s employment carries with it the risk of a possible legal challenge. Depending upon an employer’s policies or whether an employee has an employment contract, an employee may, for example, have a breach of contract or “wrongful discharge” claim. At Lustig & Associates has been guiding employers and employees through this process for over 30 years. Learn the right questions to ask before you terminate an employee's employment.

SEPARATION AGREEMENTS / WAIVERS AND RELEASES

For many employers, an employee termination triggers an almost knee jerk reaction: offer the employee severance pay and a separation agreement with a release of claims to avoid a potential employee lawsuit. Other employers offer severance but do not seek a release. Although there are advantages to the use of separation agreements to prevent prospective legal headaches, such agreements may not be appropriate in all instances.

Whether to offer a terminated employee a severance package in return for a release of claims depends on a number of employer specific factors, such as employer policy, practice and employee relations philosophy. Generally, providing severance in exchange for a release can be a worthwhile investment, as the amount of severance generally is insignificant when compared to the cost of defending an employee claim.

Severance agreements are particularly useful when the termination is a difficult one or the separated employee is viewed as the type of person likely to assert a claim. Severance agreements are also effective tools to prevent litigation in the context of layoffs, where there are risks of multiple claims.

 

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