Labor and Employment

My employer told me I would be laid off and gave me the option to go ahead and quit. What should I do?

In most circumstances, if you are laid off due to lack of work, position elimination or reorganization, you would be entitled to receive unemployment compensation benefits. If you quit or resign "without good cause attributable to the employer," you may be disqualified from receiving unemployment compensation benefits.  A resignation in lieu of involuntary termination will probably not disqualify you from benefits.  While many employees want to be able to say they resigned, rather than were terminated, being laid off simply does not have the same stigma in today's economy that it had a year or two ago. However, before resigning, you will want to see if your company has a written policy that entitles you to certain severance pay, recall rights, or the like, upon lay-off, which may not be available to you in case of resignation.

Due to tough economic times, I need to lay-off a third of my workforce in order to survive. What are the legal implications?

You should consider alternative cost-saving measures, such as shorter work days/weeks, pay reductions, exit incentive plans, etc., prior to involuntary lay-offs or RIF. However, if an involuntary workforce reduction is unavoidable, it is important to do so legally by clearly setting forth the criteria upon which the lay-off decisions will be made, evaluating the possible adverse impact upon protected groups (race, gender, age, etc.), determining whether severance or separation pay is required or will be offered, determining whether the company wants to obtain releases of liability in conjunction with the lay-offs, evaluating whether and how much notice must be given to employees, and preparing an effective communication strategy that will lessen the impact on employees and the liabilities for the company.

My employer just closed our plant without any warning or severance pay. Is that legal?

It depends. Under the federal WARN law, employers with 100 full-time employees must typically give 60 days' notice of a plant closing (50 or more employees) or mass layoff (500 employees or 33% of a workforce of 50-499). Some exceptions, such as unforeseeable business circumstances, may eliminate the need for notice. Also, in Tennessee employers with 50-99 full-time employees at a site in the state must provide notice of a reduction of 50 employees within a 3 month period.

My company fired me after I was a loyal employee for 20 years. I believe it was because of my age, since the plant just got a new manager who is around 30. What should I do?

While it is not unlawful to fire someone despite years of loyal service, the Age Discrimination in Employment Act (ADEA) and a similar Tennessee statute prohibit termination based on age if you are 40 or over. You may consult an employment attorney who can discuss the specific facts and evaluate your case. You may also file a complaint with the Equal Employment Opportunity Commission or the Tennessee Human Rights Commission. These agencies will then investigate your complaint and determine whether they believe the law was violated.       

I believe I am being sexually harassed at work. What should I do?

Most employers have policies prohibiting sexual or other types of harassment and explaining the complaint procedure to be followed. It is important to follow the employer's policy and procedures regarding making a complaint, as this could affect your legal rights. If you are unsure of the policy or unsatisfied with the results of following the complaint procedure, you may contact an attorney who is familiar with employees' rights in the workplace and/or contact the Equal Employment Opportunity Commission or the Tennessee Human Rights Commission.    

My employer does not provide any paid vacation. Is this illegal?

No. Employers are not required to provide paid vacation in Tennessee.    

What should I do if my employer refuses to pay me for overtime or asks me to work off the clock?

Some positions, such as certain executives, administrative employees, professions, and outside salesmen, are usually exempt from overtime requirements under federal law.  However, if an exemption does not apply, you are entitled to compensation for all hours worked, including overtime for all hours worked in excess of 40 each work week. You may consult with an employment attorney or the Tennessee or U.S. Department of Labor to determine your rights and the best course of action.           

My daughter was in the hospital for two weeks, and my employer refused to give me unpaid time off to take care of her. Was this illegal?

That depends on several factors, including the size of your work site. The Family and Medical Leave Act (FMLA) provides up to 12 weeks of unpaid leave in such situations if you work at a site that has at least 50 employees within a 75 mile radius.   You must also meet other requirements, such as working at least 1250 hours for the employer in the previous year.  If you work for a smaller work site, the law does not require the employer to provide unpaid leave. You should also review your company's policies regarding leave.       

What is the Employee Free Choice Act?

This is a proposed federal law that would amend the National Labor Relations Act (NLRA) to make it easier for employees to join and form unions, increase penalties for employers who fire employees for trying to join and form unions, and provide neutral assistance from federal mediators to help employers and unions agree on the terms of a first contract.  EFCA would add another method for a union’s certification as the exclusive bargaining representative for a group of non-supervisory employees.  In addition to NLRB-conducted elections and voluntary recognition by an employer, EFCA would let a union present an employer with cards signed by a majority of non-supervisory employees saying they want to be represented by the union.  Once the cards were verified as authentic (“card check”), the union could ask the NLRB to certify the union without holding an election.

I am a small business owner. A group of employees came to my office demanding that the company stop deducting lunch breaks from their pay checks when they fail to clock out. I want to fire them and dock their pay for the time they missed work. Is this legal?

Because the employees' action in approaching you about their wages could be considered protected, concerted activity, terminating their employment could be considered a violation of the National Labor Relations Act. Additionally, docking pay for time the employees actually worked may violate the Fair Labor Standards Act. You should consult an attorney who advises employers in labor and employment law before taking any action against the employees.   

I've recently started by own small business.  Where can I find out what labor and employment law and regulations apply to me?

Which labor and employment laws apply to you will depend, to some extent, on the number of employees you have and your particular industry.  Generally speaking, most employers must be aware of their obligations under wage and hour laws, fair employment or non-discrimination laws, employment-related immigration laws, occupational safety and health laws, applicable family and medical leave laws, workers' compensation laws, and the National Labor Relations Act. Some websites, such as www.eeoc.gov and http://www.tennesseeanytime.org/employment/emplaws.html, provide useful compliance information for small business owners.

DISCLAIMER: The above information available through www.jacksonmadisonbar.org is basic legal information and is neither intended as legal advice, nor a substitute for legal advice.  No attorney-client relationship is created herein.  The content on www.jacksonmadisonbar.org is provided by the Jackson-Madison County Bar Association as a public service and for general information only. You should consult your attorney if you have questions concerning any specific situation. If you do not have an attorney, may we suggest that you visit these links. Employment Law Plaintiff Workers Compensation, Employment Law Defense Representing anagement, Employment Law Plaintiff Discrimination,Employment Law Plaintiff Wrongful Termination, Employment Law Plaintiff Sexual Harassment, Employment Law Plaintiff Railroad Pensions section or find a lawyer in the phone book.  The topics covered through www.jacksonmadisonbar.org will provide basic information and should make it easier for someone with a problem to decide whether they need professional help from a lawyer or if another agency could provide them with assistance.

A special thanks to the Memphis Bar Association for its contributions and assistance to the Jackson-Madison County Bar Association in making available this legal information.  Portions of the foregoing content have been reprinted with the permission of the Memphis Bar Association.  www.memphisbar.org.