Employment and Age Discrimination

Our attorneys are experienced in a variety of practice areas, representing both Employers/Management and Employees. In addition to labor laws and workplace safety (which we do not generally cover) the employment law field covers many, many areas.

1. EMPLOYMENT AT WILL

   In South Carolina the general rule is that absent an employment contract, either the employer or employee can end the employment relationship for "good reason, bad reason, or no reason at all." As a practical matter, this means that being treated unfairly, improperly, or inappropriately is not a sufficient basis to bring a claim. The employee has the burden of proof and, he or she must demonstrate that some exception to the general rule applies which would make the employer's conduct unlawful.

2. BASIS FOR EMPLOYMENT CLAIMS

   There are several federal and state laws that apply to the employment arena. Again, the employee has the burden of proof to show that one of the exceptions to the general rules of Employment-At-Will applies in order to give rise to a claim. Here are the most common employment claims:

   1. Unlawful Discrimination People tend to forget that not all discrimination is unlawful. Put most simply, under federal law, employees cannot be treated worse because of their:

      • Race, color, religion, national origin, and sex (Title VII of the 1964 Civil Rights Act as Amended)
      • Age (Age Discrimination in Employment Act, "ADEA")
      • Pregnancy (Pregnancy Discrimination Act, "PDA")
      • Disability (Americans with Disabilities Act, "ADA")

      • Military and/or veterans status (Uniformed Services Employment Reemployment Rights Act, "USERRA")

   2. Leave Laws The two most significant federal statutes regarding employee leave issues are:

      • The Family and Medical Leave Act (FMLA)
        Generally, employees are eligible for FMLA leave where (a) the employer has at least fifty (50) employees, (b) within 75 miles of the worksite, (c) the employee has worked for at least 1250 hours in the twelve months preceding their leave, and (d) employees have worked for the employer for at least twelve months. If the employee meets these requirements, he or she may be eligible for up to twelve weeks of unpaid leave per year.

      • Uniformed Services Employment Reemployment Rights Act, "USERRA"

   3. Wage & Pay Laws.

      • Fair Labor Standards Act (FLSA)
        This is a federal statute that provides for (a) restrictions on child labor (b) overtime pay for eligible employee who work over forty (40) hours per work wee, and (c) minimum wage.
      • South Carolina Wage Payment Act
        This state law imposes requirements on employers regarding the payment of wages, when wages are due, the notice for the change of wages, and related areas.

   4. Retaliation & Whistleblowing

      Under certain circumstances, it may be unlawful for the employer to retaliate against an employee who has complained about circumstances he or she believes to be unlawful. Importantly though, as with the anti-discrimination laws, not all retaliation is unlawful. This means that terminating or demoting someone because he or she complained is not necessarily unlawful, unless the employee's complaint involved

      • Race, color, national origin, and sex (Title VII of the 1964 Civil Rights Act as Amended)
      • Age (Age Discrimination in Employment Act, "ADEA")
      • Pregnancy (Pregnancy Discrimination Act, "PDA")
      • Disability (Americans with Disabilities Act, "ADA")
      • Military and/or veterans status (Uniformed Services Employment Reemployment Rights Act, "USERRA")
      • Violation of the Fair Labor Standards Act (FLSA)
      • Interference with Employee Benefits (ERISA)
      • Filing a Workers' Compensation Claim (S.C. statutory law)
      • Jury Duty / Compliance with a Subpoena (S.C. statutory law)

   Whistleblowing laws work somewhat similarly to anti-retaliation laws, in that it unlawful to take adverse employment actions against an employee who "blows the whistle" on a company's misconduct. There are very specific whistleblowing laws which are too numerous to list here.

   One very important aspect to anti-retaliation and whistleblowing statutes is identifying the protected activity. Depending on the statute, and there are too many to describe here, complaints internally to company management may or may not be protected. For some statutes, the employee must complain to a government official to be entitled to protection. Additionally, the nature of the complaint must include and/or allege that applicable law that is being violated.

   5. Employment Contracts, Restrictive Covenants, and Severance Agreements

      We also can draft, review, and litigate the following

      • employment contracts,
      • covenants not to compete,
      • covenants not to disclose trade secrets or confidential information,
      • covenants not to solicit customers,
      • covenants not to solicit employees,
      • independent contractor agreements, and
      • severance agreements.
3. OTHER SOUTH CAROLINA EMPLOYMENT LAWS

   In addition to the laws discussed here, South Carolina law may also provide as a basis for employment-related claims for:

   • Public employee grievance system
   • Teacher laws
   • Constitutional rights of public employees
   • Payment of post-termination claims to Sales Representatives
   • Blue laws
   • Wrongful discharge in violation of public policy
   • Intentional Infliction of Emotional Distress / Outrage
   • Defamation
   • Invasion of Privacy
   • False Imprisonment
   • Assault
   • Battery
   • Negligent Hiring, Retention, Supervision
   • Interference with Economic Relations
   • Civil Conspiracy

We have not listed every employment law under the sun on the website but have identified those laws that most commonly arise in the workplace arena.

4. LABOR LAWS AND WORKPLACE SAFETY

   In addition to some of the laws discussed here, there is a great body of law regarding labor and union issues, as well as workplace safety. Theses are relatively narrow and specialized fields, which we typically do not work in but would be happy to refer to other attorneys who practice in these areas.

5. "ADVERSE" EMPLOYMENT ACTION

   Not every slight or unfair treatment at the workplace is actionable. Generally speaking, an employee will not have a claim unless he or she has suffered an adverse employment action, which means he or she has suffered sufficient harm to warrant a claim. These might include terminations, reductions in force, demotions, pay cuts, denial or promotions, transfers to less desirable shifts / jobs, and failure to hire.

6. EMPLOYER SIZE / NUMBER OF EMPLOYEES

   Employment statutes can impose significant burdens on the employer, which is why many laws do not apply unless the employer has at least a minimum number of employees. In other words, small employers are exempt from many, but not all, employment laws. Each law is different, but here is listing of the most significant laws requiring that a company employ a minimum number of employees:

   • FLMA: 50 or more employees within 75 miles.
   • Title VII: 15 or more employee
   • ADEA: 20 or more employees
   • ADA: 15 or more employees
   • FLSA: 1 or more employees
   • USERRA: 1 or more employees

7. POTENTIAL DAMAGES / REMEDIES

   Depending on the type of claim, and most importantly if the claim is successful, the employee may be entitled to some of the relief listed below:

   • Backpay
   • Frontpay
   • Reimbursement of litigation costs
   • Attorneys' fees
   • Compensatory Damages
   • Punitive Damages
   • Consequential Damages
   • Liquidated Damages
   • Court orders directing the employer to take certain action or refrain from taking certain action

If you have any questions, inquiries or desire representation with regard to any of the foregoing types of employment issues, please send such communications to rsneed@fosterfoster.com

8. Employment Law Links (pull down the following:)
   • Information on the Uniformed Services Employment and Reemployment Rights Act (USERRA), Department of Labor Veterans Employment and Training Service (DOL-VETS):
     www.dol.gov/vets/welcome.html#userra
   • Information on the Uniformed Services Employment and Reemployment Rights Act (USERRA), Employer Support of the Guard and Reserve
     www.esgr.org
   • Employment Discrimination, United States Equal Employment Opportunity Commission (EEOC):
     www.EEOC.gov
   • Employment Discrimination, South Carolina Human Affairs Commission:
     www.state.sc.us/schac
   • Wage Hour Disputes, including minimum wage and overtime issues, Department of Labor - Wage and Hour Division:
     www.dol.gov/esa/whd
   • Information as to the Family and Medical Leave Act (FMLA), United States Department of Labor:
     www.dol.gov/esa/whd/fmla
   • Information as the South Carolina Wage Payment Act, South Carolina Department of Labor License and Regulation (SCLLR)
     www.llr.state.sc.us/Labor/wages
   • Federal Whistleblower claims, OSHA:
     www.osha.gov/dep/oia/whistleblower

Contact Us Regarding an Employment Question
Most of the firm's Employment cases are handled by Attorney Robert M. Sneed. f you have any questions concerning an Employment issue, contact the firm at (rsneed@fosterfoster.com).