Employment LitigationEmployment Litigation

There are several federal laws that govern employment and several federal organizations that enforce those laws. Some employment laws allow for employees to sue their employer directly for violations. Other laws seek to protect the rights of workers, such as Title VII of the Civil Rights Act, which seeks to protect workers from discrimination in hiring and firing. An employer does not need to be aware of these statutes to be sued, and in some cases a federal agency might sue an employer on behalf of that employer’s employees. An employment litigation attorney can help you navigate any litigation from employees or state/federal agencies. Below are some issues that employers will likely encounter that an employment litigation attorney can help with.

Unpaid Overtime and Minimum Wage Violations Litigation

Minimum wage and overtime payments were created by the Fair Labor Standard Act. The current federal minimum wage is set at $7.25 with a separate wage for tipped employees set at $2.13 an hour. Many states have their own laws governing minimum wage, and for states that have a higher minimum wage than the federal minimum wage the higher of the two wages takes priority. For example, in Virginia, the minimum wage is currently $9.50 with no separate tipped minimum wage, and it is set to increase every year until it is $15.00 an hour in 2026. The language of Virginia’s minimum wage specifically states that between the state and the federal minimum wages, the greater of the two should be given to employees. Virginia still allows for a business to pay a tipped employee less than minimum wage so long as employee and employer agree, so while Virginia does not establish a separate tipped wage it does default to the federal tipped minimum.

There are many misconceptions about overtime on the part of workers and employers. For example, many employers will offer time and a half for holidays, and many workers believe that is required by the law, but it’s actually an incentive by employers to prevent employees from calling out on those days. Many employers similarly think that overtime is only for hourly staff, but that is not the case. What determines if an employee is entitled to overtime pay for working over 40 hours per week is job function, industry, and/or professional qualifications. For example, if you have salaried sales staff, it’s possible that they qualify to receive overtime, while administrative staff would likely not. For industries such as farming, workers may not be entitled to overtime pay regardless of their job function. And if your employees need a doctorate or similar advanced degree to perform their job function, then they may also not qualify. But if you have a waiter who is being paid on a salaried basis, and that waiter works more than 40 hours a week, they still need to be paid time and a half. For salaried staff, that’s calculated by dividing their weekly pay, say $840, by the hours they worked, say 42. This gives us their actual hourly rate, which in this case would be $20 an hour. Since the employee has already been paid their hourly rate for those two extra hours, you divide the hourly rate to find the overtime rate, which in this case would be $10. The overtime pay is the hours worked overtime multiplied by the overtime rate, which for this week gives us $20 overtime pay. An employee who believes they have been wrongfully classified as overtime exempt might sue for overtime pay they believe they are owed.

Minimum wage violations are generally when you fail to pay an employee their federally or state mandated minimum wage. This often happens with tipped employees. Federal law allows employees who receive tips, such as food servers, to receive a tipped minimum wage instead of the full federal minimum wage. The expectation is that these workers can be paid above minimum wage depending on the tips they receive, but if they do not receive enough to meet that minimum wage then employers need to supply the difference.

An employment litigation attorney can help you defend against accusations of unpaid overtime or minimum wage violations.

Labor Relations Violations

The National Labor Relations Act governs the rights of employees to collectively bargain and to join unions, as well as setting regulations for the conduct of employers and unions when bargaining with each other. The National Labor Relations Act gives employees the right to self-organization, to form or join or assist labor unions, to collectively bargain through representation of their choosing, and other activities for the purposes of collective bargaining, mutual aid, or protection. The National Labor Relations Act also prohibits employers from performing “unfair labor practices,” which includes “interefer[ing] with, retrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed [above],” (Section 8 of the National Labor Relations Act) interfering with the formation, regulation, or funding of a union, refusal to collectively bargain with employees, or firing an employee for exercising their rights guaranteed under the National Labor Relations Act.

What “interfering” means in terms of interfering with workers’ rights to organize is not defined within the National Labor Relations Act, though the National Labor Relations Board has issued some decisions that help explain it. The National Labor Relations Board generally interprets interference broadly. For instance, if you wanted to ban employees from discussing wages, the National Labor Relations Board would view it as a violation of the National Labor Relations Act because the board interprets sharing wages as a fundamental building block of labor organization. That does not mean you, as an employer, cannot make a rule that employees cannot discuss wages in front of customers. Generally speaking, provisions that limit such discussion in front of customers has been interpreted as not violating the National Labor Relations Act by the National Labor Relations Board. The main issue of contention with wage sharing is that there must be an allowed time and space for workers to discuss wages if they so choose. So, limiting discussion of wages on the register but allowing it freely in the break room would likely be complying with the National Labor Relations Act.

How is the National Labor Relations Act enforced? The National Labor Relations Board has the power to investigate charges of violations of the National Labor Relations Act, to negotiate settlement between employees and employer, to decide cases before a National Labor Relations Board administrative judge, and to enforce those decisions. Let’s say you issued a blanket ban on discussion of wages, because you believe that employees discussing wages leads to hurt feelings and impacts their ability to perform their job duties. An employee discusses their wages with a coworker while on break, and you decide to fire them for violating your policy. That employee decides to file a complaint with the National Labor Relations Board, and the National Labor Relations Board decides to open up an investigation. Field agents arrive at your workplace, interview your workers, and gather whatever evidence it is they might deem necessary for their investigation. Once that investigation is concluded, they will send their findings to their regional director who will evaluate the evidence and decide if there is enough evidence that there has been a violation of the National Labor Relations Act. If they decide there is enough evidence, they will attempt to negotiate a settlement with you, the employer. The National Labor Relations Board tries to remedy the situation in a way that satisfies all parties involved; the employer, employee, and the National Labor Relations Board. In this instance, they might want you to reinstate the fired employee and alter the policy to restrict discussion of wages (either by deleting the policy or by restricting discussion only at certain times). If, for whatever reason, all parties cannot agree to a resolution, then the National Labor Relations Board will prosecute the case before an administrative judge in much the same way as a civil litigation trial might go. From there the administrative judge will render a decision which the National Labor Relations Board will enforce. An employment litigation attorney can help guide you through this process and represent you before an administrative judge if it becomes necessary.

OSHA Violations

The Occupation Safety and Health Administration, also known as OSHA, regulates the safety and health of workers and workplaces in the US. For example, at a construction site where there is a possibility of things falling on the head (for instance, a work site that has multiple levels), a hard hat is required. There are also regulations on the handling of dangerous materials, food preparation, and keeping floors clean and dry.

Like the National Labor Relations Board, OSHA has the ability to investigate your worksites to make sure that regulations are being properly followed. An inspection can be triggered by an employee complaint, but it could also be a regular part of OSHA monitoring high risk industries or the result of a serious workplace injury. For example, if an employee were to lose an eye, a limb, or their life, OSHA is required to perform an onsite inspection. During the inspection an authorized representative of an employee is allowed to accompany the inspection. The inspector will take notes on any potential violations of OSHA regulation and within 6 months of the inspection can issue citations. And, like the National Labor Relations Board, an employment lawyer can represent you before any administrative judges or be the point of contact in any investigation by OSHA.

Why hire an employment litigation attorney?

If you are being sued by individual employees, sued by a class action of employees, or investigated by any number of federal departments or organizations, it is important to have experienced legal counsel on your side. Many disputes can be resolved through quiet negotiation between parties without the cost of litigation, and employment litigation is no exception. Employment litigation attorneys can negotiate a settlement on your behalf that can resolve your case for a fraction of the damages sought. An employment litigation attorney can also represent you in any conversation with a federal agency and negotiate with them directly. And in the event that a settlement cannot be reached, an employment litigation attorney can represent you before an administrative judge or a civil judge for any legal matter that is before you. If you are in the middle of any litigation regarding any employment issue, be sure to contact us at the Mughal Law Firm.