Employment Law & Paralegals

1. Employment Law & Paralegals The 7 Deadliest Law Firm Sins “Nobody in school warned me I had to know employment law! I just wanted to help with the real estate closings!” M. Malissa Burnette, Esquire Certified Specialist in Employment & Labor Law Callison, Tighe & Robinson, LLC Columbia, SC

2. Sin #1(Just Go Ahead and Pull Out Your Wallet Now) “They pay all the employees by salary so of course they don’t have to pay them overtime.” Even if an employee is paid a salary you must pay them overtime if they work over 40 hours a week and are considered “non-exempt” under the FLSA. Exempt employees are: “Learned Professionals”– people who have earned advanced degrees Those who meet the tests for “executive” or “administrative” exemptions under the regulations Cannot substitute compensatory time for overtime in the private sector

3. Sin #1Continued NEWS FLASH: Most law office personnel are NOT exempt under the FLSA! In 99% of law firms, the lawyers are the only exempt employees. Fair Labor Standards Act covers employers with 2 or more employees. If the employer fails to properly pay employees, an employee can sue within a 3 year statute of limitations for willful violations. The regular statute of limitations is 2 years. Damages can include: The difference between wages paid and wages owed An equal amount as liquidated damages Attorneys fees and costs South Carolina Wage Payment Act, SC Code Section 41-10-10, et seq. also permits employees to sue for treble damages for unpaid wages. Covers employers with 5 employees. 3 year SOL.

4. Sin #2(Way to Step Into It, Bozo) “I know that guy and cancer runs in his family, so I wasn’t about to hire him, even if he was at the top of his class. Our insurance costs would hit the roof.” Just how many employment discrimination laws can be violated in one employment decision? This statement points to the ADA and the Genetic Information Non-Discrimination Act of 2008, for starters. Employment discrimination coverage depends on the number of employees in the firm. Only 42 U.S.C. §1981 covers all size employers. 15 employees or more: Title VII of the Civil Rights Act of 1964 protects from discrimination based on race, sex (inc. pregnancy and sexual harassment), color, national origin, and religion. (Equal Pay Act requires only 2 employees) Americans with Disabilities Act protects qualified individuals with disabilities from discrimination. Title II of the Genetic Information Non-Discrimination Act of 2008 prohibits genetic information discrimination in employment.

5. Sin #2Continued 20 employees: Age Discrimination in Employment Act protects employees 40 years of age and older South Carolina Human Affairs Law: Contains prohibitions against employment discrimination similar to federal non-discrimination laws. Covers employers with 15 employees. Employers with 50 or more employees within a 75 mile radius must comply with 12-week leave requirements for employees and family members with serious health conditions under the Family and Medical Leave Act. Congress is currently considering the Employment Non-Discrimination Act (ENDA), modeled on Title VII, to prohibit workplace discrimination against persons based upon gender identity or gender expression. 15 employees.

6. Sin #3(Please Tell Me You Did Not Actually Say That) “She quit without notice so I think I’ll just hold her last pay check and see how she likes that.. Or maybe I’ll deduct a couple of hours for the aggravation she put me through.” Not so fast. First, this is an at-will employment state and notice is not required. And the South Carolina Wage Payment Act requires payment of all wages due within 30 days. This will include accrued vacation, or PTO unless a written policy notifies the employee that it will not be paid upon separation from employment Employer may not withhold any amount from paycheck without giving at least 7 days written notice. This is true even if employee owes money to employer. Employer must provide written notice of terms of employment at inception of employment Employees can sue for treble damages, costs and attorney’s fees.

7. Sin # 4(Urban Legends) “I know this is an at-will employment state, so I can fire anyone for anything, and I don’t care if I did promise in the Employee Handbook to pay two weeks’ severance pay.” An employer or employee may terminate the employment relationship at any time, as long as it is not an illegal reason. A contract changes at-will status, and employee handbooks or company policies without an adequate disclaimer can be deemed a contract. “Right-to-work” refers to an employee’s right to work without being forced to join a union. Employers can be unfair, whether it is morally right or wrong, as long as their conduct is not unlawful, because South Carolina is an at-will state.

8. Sin # 4Continued Employee handbooks can be beneficial because everyone in the office has the same expectations regarding conduct and policies. South Carolina legislature has passed a law guiding employers in placing conspicuous disclaimers in handbooks. If done correctly, the handbook is deemed not a contract; but even if criteria as to wording of disclaimer are met, a handbook containing mandatory language affording rights to employee may create a question as to whether the at-will relationship has been altered. Sometimes, well-meaning efforts to be a good and benevolent employer can afford the employee rights that were never intended. These rights are often found in progressive discipline policies. Ex.: entitled to 3 warnings before can be fired, regardless of severity of the offense. Important: All policies should be framed in discretionary language. There is no requirement to provide vacation leave, sick leave, or severance pay because South Carolina is an at-will state. It behooves law firms to have good policies to keep good employees. These policies should be written with care, with a conspicuous disclaimer, signed by the employee, and enforced consistently.

9. Sin # 5 (Dear God In Heaven) “I think I’ll just log onto my co-worker’s personal e-mail account tonight to see what she’s been up to.” Does your co-worker have an expectation of privacy? Tread with caution. The answer may depend on your law firm’s written policy governing workplace computers and other technology, and the firm’s right to monitor and search it’s own workplace, equipment, and computers, and whether the policy is consistently enforced. Quon v. Arch Wireless Operating Co., Inc. and its implications Case decided by the U.S. Supreme Court: enforces concept that it is best to have a solid written privacy policy and to make no exceptions. Law firms must balance monitoring how employees are using their time with respect for employees’ privacy to avoid complications. If you want to check up on your employees it is best to do it before you hire them. Background checks can be conducted with proper consent. Also note, embarrassing scandals have been caused for employers as a result of what employees have posted on social networking sites such as Facebook. Employers can enforce policies about discussing work issues.

10. Sin # 6(Get Thee Behind Me, Satan) “He got a subpoena to court next week but he’s been out too much already, so I fired him.” No knee-jerk reactions and no retaliation! South Carolina law protects employees from dismissal and demotion for complying with a subpoena or serving on a jury. Employers can be liable for up to a year of the employee’s wages. It is also illegal to replace someone for a “cheaper” but unauthorized alien employee. This will cost you actual damages, lost wages, and attorney’s fees. Employers cannot retaliate for the filing of a worker’s comp claim and nearly all discrimination claims. Non-retaliation sections are also included in the Sarbanes-Oxley Act, OSHA, the FMLA, FLSA, and others. Just don’t do it!

11. Sin # 7(Oh No You Didn’t!) “I could smell smoke on her clothes and you know we don’t hire smokers.” South Carolina Code prohibits personnel actions from being taken against those who smoke outside of the workplace. However, there is no law requiring employers to provide smoke breaks. There is actually no law that requires breaks at all, but most employers offer a lunch break if they want to keep any employees. When hiring, remember that South Carolina law protects union members from discrimination, and it is a misdemeanor to fire an employee because of political opinions or exercise of political rights. It is also unlawful to discriminate against debtors in bankruptcy.

12. Conclusion • Law firms must be good employers as well as excellent lawyers • If you can’t figure it out, get HELP M. Malissa Burnette, Esq. Certified Specialist in Employment & Labor Law Callison, Tighe & Robinson. LLC P.O. Box 1390, Columbia, SC 29201-1390 803.404.6900 (O) mmburnette@callisontighe.com