Employment Law
Employers
Employment Discrimination Defense
Employers today face many legal hurdles. Under the Missouri Human Rights Act, employers with six (6) or more employees are covered by the State's antidiscrimination laws. RSMo. § 213.010. Many federal laws, including the Americans with Disabilities Act, Title VII, The Age Discrimination in Employment Act, and other federal laws cover employers with as few as fifteen (15) employees. The Family Medical Leave Act, another federal law impacting employers, affect employers with fifty (50) employees or more. At The Law Firm of O'Reilly & Jensen, L.L.C., we help employers handle discrimination claims in both the administrative setting and in court rooms. Employment discrimination defense is rarely covered by insurance. It's important that an employer understand and hire attorneys who are familiar with and understand not only the technical details of the state and federal laws, but how juries perceive and understand the employer/employee relationship. The defense of an employment discrimination claim should begin very early on. Under federal and Missouri law, a person alleging discrimination must first file an administrative Charge of Discrimination with either the Equal Employment Opportunity Commission (EEOC) or the Missouri Commission on Human Rights (MCHR). There are strict time limits for when an employee must bring these claims. Generally, under state law, the claim must be brought within one hundred eighty (180) days of the act of discrimination. Under federal law in Missouri, the federal claim must be filed administratively within three hundred (300) days of the act of discrimination. Some employers try to handle these administrative claims on their own, which is a mistake.
If you have had a Charge of Discrimination filed against your business, we believe that your best approach is to treat every Charge of Discrimination as if it will become a full-blown lawsuit. If that happens, it is best to hire your defense attorneys as early as possible so we can investigate the claim. At The Law Firm of O'Reilly & Jensen, L.L.C. we have experience representing employers on virtually every kind of discrimination claim. We have successfully obtained summary judgments and had cases dismissed prior to trial. We also have experience trying employment cases. If you believe you have an employment discrimination lawsuit against your business, or are already in the process of defending one, we are available to speak with you about defending your company from these discrimination claims.
Employment Law Planning for Businesses
As a business owner, you plan for how to market your business, how to best sell your product or make your product, and you have a vision for your company. Employment law planning for a business should just be another part of that planning. According to the Equal Employment Opportunity Commission, there are thousands of sexual harassment, age discrimination, and other discrimination cases filed in the United States every year. Even in situations where your company has done nothing wrong, you can be dragged into court and have to spend thousands of dollars defending yourself. The United States Supreme Court has made available an affirmative defense for businesses that act ahead of time to protect themselves. Most of these policies include the preparation of an employment handbook, a strong antidiscrimination policy, and an effective and meaningful training of employees on how to handle discrimination claims. At The Law Firm of O'Reilly & Jensen, L.L.C., we can assist your business in preparation of proper policies and procedures, and employee training as part of a comprehensive business plan to handle employment law claims.
Handbooks and Policies
Every business, regardless of size, should have an employment handbook and appropriate antidiscrimination and other business policies. Many of these policies can be helpful in reducing potential exposure to employment discrimination or other claims. Other policies and procedures can be helpful in facilitating communication between employer and employee, which is a good thing. Failure to have an employment handbook is bad. Having a handbook that inaccurately states the law, or creates promises or conditions that an employer may not intend is even worse. At The Law Firm of O'Reilly & Jensen, L.L.C. we assist employers with drafting their employment handbooks and policies to help ensure that your company is in its best position to comply with the law, defend any discrimination claims, and enhance the employer/employee relationship.
Employee Training
Having written policies in your business is only the first step. Many courts have held that an employer's written policies do not provide an adequate defense to employment discrimination claims unless there is proof that the employer's policies and procedures are effectively known and understood by the employees. As a result, employee training is a critical part of being proactive in protecting your company. At The Law Firm of O'Reilly & Jensen, L.L.C., we offer management specific and general employee training to small, medium, and large businesses throughout Southwest Missouri. If your business isn't doing frequent training on these topics, your business is at risk.
OSHA Violations
The attorneys at The Law Firm of O'Reilly & Jensen, L.L.C. have a varied and extensive experience dealing with the Department of Labor, and helping our clients be in compliance with the occupational safety and health regulations contained in OSHA, 29 USC § 651 et seq. Prevention is absolutely the key to reducing your risk of an OSHA citation. Some of the preventative measures that will decrease the risk of a citation include training you, your supervisors, and your employees, maintaining accurate injury and illness logs, maintaining complete and updated Material Safety Data Sheets ("MSDS") sheets, developing safety programs that are applicable and specific to your business, providing appropriate personal protective equipment (PPE), and maintaining equipment and machinery properly, including the required safety guards.
As you know, employee health and safety has a direct impact on the bottom line of any business. For any company to prevent citations and increase the level of health and safety in its workplace, management must be committed to all aspects of employee health and safety. Without this commitment, preventative measures are meaningless.
If you do not have comprehensive policies and procedures in place to not only prevent accidents, but guide you and your supervisors as to what to do when an accident occurs, it would be in your best interests to speak with one of the attorneys at The Law Firm of O'Reilly & Jensen, L.L.C. We can help you develop those policies, in addition to helping guide you through the process if an OSHA inspector is on the way. If an inspection has already been done, we can help guide you through the OSHA regulations to make sure that you are not the unintended victim of a "serious violation" or a "failure to correct", both of which can bring serious penalties of up to Seven Thousand Dollars ($7,000.00) per violation. Finally, it is important to implement policies and procedures, and then train your management staff, as to what kinds of steps should be taken after an OSHA compliance officer visits and inspects your workplace. Please let us know if there is anything that the lawyers at The Law Firm of O'Reilly & Jensen, L.L.C. can do to help ensure your workplace is OSHA compliant.
Employees
Employment Discrimination
As an employee, you are sometimes faced with the unfortunate situation of experiencing discrimination while at work. In Missouri, you may be protected by the Missouri Human Rights Act. Any employer who has six (6) or more employees is covered by this law, which prohibits your employer from discriminating against you based on your race, color, sex, national origin, religion, age, disability, or in retaliation for your having taken certain types of actions. Those criteria are often referred to as "protected classes". If you believe that your employer has taken a negative action against you, which can include transferring you to another position, giving you a bad performance review, or even terminating your employment, and you believe that your being a member of one of the protected classes referenced above played a role in your supervisor's decision to do so, you may have an employment discrimination case. It is in your best interests to contact an attorney immediately if that situation has occurred, as you are subjected to very strict timelines. In employment discrimination claims, you must file a change of discrimination with the Missouri Commission on Human Rights and/or the Equal Employment Opportunity Commission within either one hundred eighty (180) or three hundred (300) days of the date you were harassed or discriminated against.
Sexual Harassment Litigation
The attorneys at The Law Firm of O'Reilly & Jensen, L.L.C. have handled a variety of sexual harassment claims. In Missouri, there could be two (2) potential causes of action if you believe you are being treated differently, or unfairly, at work because of your sex. If you believe you are being treated unfairly purely because you are a woman or man that is typically referred to as gender discrimination. However, if you believe you are being treated differently or unfairly based on a coworker or supervisor's having taken a sexual interest in you that can be a second type of claim, called "sexual harassment". In Missouri, to prove a claim for sexual harassment, you must prove that:
- you are a member of a protected class;
- that you were subjected to unwanted sexual harassment;
- that the harassment was based on your sex;
- that the harassment effected a term, condition, or privilege of your employment; and
- that your employer knew or should have known about the harassment and failed to take proper remedial action. Howard v. Burns Bros., 149 F.3d 835, 840 (8th cir. 1998)
As you can see, proving a sexual harassment case goes far beyond proving that a coworker or supervisor made a sexual comment to you, or touched you in a way that you found to be sexually inappropriate. The law also requires the you to show, in certain circumstances, that not only did you experience sexual harassment, but that he harassment was "severe and pervasive" and permeated the work environment. As a result, it is much more difficult to prove a sexual harassment claim than what most people may believe. To make sure that your rights are protected, and that you begin the complaint process within the applicable timelines, it is your best interests to speak to an attorney immediately.
Age Discrimination
Both Missouri and federal law protect you from being discriminated against by your employer because of your age. In most cases, you are protected if you are over the age of forty (40). If you believe that your employer has taken a negative action against you, whether it be something small like a comment based on your age, or something large, like a termination, then it is your best interests to contact an attorney so that they can determine whether you have been subjected to age based discrimination. In Missouri, in order to prove an age discrimination case, you must show that you were subjected to some type of alleged discriminatory act, that you are a member of the protected age class, that your membership in that age class was a contributing factor in the employer's decision to take the discriminatory action, and that as a direct result of your employer's conduct, you suffered damage. Stanley v. JerDen Foods, Inc. 263 S.W.3d 800, 803 (Mo. App. 2008). Please contact us immediately if you believe you have been discriminated against based on your age, and we would be happy to evaluate the facts of your case and help you determine what your options are.
Disability Discrimination
Employees are often injured while working in the workplace, when this situation happens, the result could be a Missouri Worker's Compensation case. However, at the end of that case, you may be left with a permanent disability. Additionally, many workers have injuries and diseases that did not occur in the work place, but still result in disability that affects their ability to work, or compete for jobs to the same degree as individuals that do not have the same injury or disability.
In Missouri, employers are prohibited from discriminating against their employees based on their status as a disabled person. In Missouri, to prove a disability discrimination case, you must prove that your employer took a discriminatory action against you, that you are a member of the protected class based on your disability, and that your disability was a contributing factor in your employer's decision to take the discriminatory action. Finally, you must also prove that as a direct result of your employer's conduct, you suffered damage. Lomax v. Daimler Chrysler Corporation, 243 S.W. 3d 474, 479-480 (Mo. App. 2008).
Disability discrimination cases are a lot more difficult than they can initially seem, especially when they are in the context of a work place injury. Often times, the rules prescribing whether your employee can terminate you in worker's compensation are different than the rules that apply under the Missouri Human Rights Act, the law which protects you from disability discrimination in the work place. As such, it is in your best interests to consult with an attorney immediately if you believe that you have been discriminated against based on your disability, so that they can evaluate the facts of your specific and particular case, and inform you as to whether you may have a disability discrimination claim.
Family Medical Leave Act
Under the FMLA, if you have worked for a year, and have worked more than twelve hundred fifty (1,250) hours during that year, and your employer has at least fifty (50) employees within seventy-five (75) miles of where you work, you may be entitled for up to twelve (12) weeks of leave during each calendar year. This leave is unpaid, but it does provide some level of assurance that after your health condition has resolved, there will be a job waiting for you at your employer's place of business. There are, however, significant limitations to your eligibility, beyond those addressed above.
First and foremost, an employee cannot take FMLA leave for just any medical reason, like the need to attend a doctor's appointment. Instead, the leave must be required due to a "serious health condition" of you or someone in your immediate family. In 2008, there were additional amendments made to the FMLA that can provide additional periods of leave for employees who are with family members that have been called up for duty in the military, or who are returning home from combat with injuries that require at home care.
Many employers have an extensive documentation process that you must go through before you are eligible to take FMLA leave. In some circumstances, it will require that you provide documentation from your employer to your physician, who will fill the documents out, and give them back to you to provide to your supervisor or human resources representative. If you believe that you or someone in your immediate family has suffered a serious health condition that requires time off on your part, it is in your best interest to contact an attorney quickly to make sure that your rights are protected and that your employer does not terminate your employment.
Whistleblowing
In Missouri, employees are provided a number of protections if they are forced with the difficult proposition of "blowing the whistle" on their employer. This situation can occur in a variety of contexts.
First, you are protected from retaliation by your employer if you are subjected to harassment or discrimination in the workplace, and report it to a supervisory employee. Or if you witness a co-employee being subjected to harassment or discrimination, and report it to your employer. Those protections will also be extended to you if you report the harassment or discrimination to the Missouri Commission on Human Rights and/or the Equal Employment Opportunity Commission.
The second type of situation where this can occur is if you have reported your employer to the Department of Labor for a wage an hour issue, to OSHA based on a dangerous condition or situation in the workplace, or other state and federal agencies based on something that you believe to be illegal or unsafe occurring at work. Many of the laws involved (OSHA, the Fair Labor Standards Act, etc.) have protections contained within the statute to make sure that your employer does not retaliate against you for your involvement in either reporting aspect or in the investigative phase.
Third and last, you are also entitled to protection from retaliation if you have to report your employer for a violation of a Missouri regulation, law, or statute. In Missouri, if you are reprimanded or terminated for reporting your employer for violating a law, you may have a cause of action called "violation of public policy." That type of case is often called a "tort" which means a civil offense. In Missouri, we have a public policy that seeks to encourage employees to report and "blow the whistle" on their employer if something unsafe or illegal is occurring in the workplace. As a result, if your employee terminates you for doing so, this may be a potential remedy for you.
In any or all of the above circumstances, it will always be in your best interests to consult with an attorney to determine whether or not the type of action that you took was "protected conduct" from the outset, and if it was, whether the action taken by your employer was illegal or violated Missouri public policy. Please contact us at The Law Firm of O'Reilly & Jensen, L.L.C. immediately if you need assistance dealing with a "whistleblower" situation.