FAQs: Employment & Labor
What is sexual harassment?
Can a fired employee sue the employer?
Who is entitled to overtime compensation?
Do employees have a right to privacy?
Can an employer perform background checks on applicants without violating their privacy?
May employees engage in organizing efforts and hand out literature regarding Unions on company property?
May a company discriminate against alien workers?
May an employer hire illegal aliens?
Which employers are subject to COBRA?
Q: What is sexual harassment?
A: Sexual harassment is either establishing terms and conditions of employment that require sexual favors (called quid pro quo sexual harassment), or creating, maintaining, or tolerating a sexually hostile work environment. Just how hostile, offensive, or abusive the environment must be to support a cause of action is still a matter of legal dispute and controversy. Typically, conduct can be actionable under state or federal law even if it is not so severe as to cause a plaintiff-employee to suffer psychological injury.
Q: Can a fired employee sue the employer?
Employees who believe that their employment was wrongfully terminated may file suit against employers based on such claims as violation of federal or state anti-discrimination or other employee protection statutes, breach of an employment contract, or state common-law exceptions to the employment-at-will doctrine.
Liability under any of these can be costly to an employer, and costs incurred in defending against lawsuits can be exorbitant. Taking proactive steps to avoid lawsuits can benefit both employers and employees.
Q: Do employees have contracts with their employers?
A: In one sense, employment relationships all have certain aspects of a traditional contract relationship. If an employer verbally agrees to hire an employee at a specific rate and then refuses to pay it after the employee finishes the work, the employee can sue the employer under various contract or equitable theories.
However, in Minnesota, employment is presumed to be on an at-will basis, which means employers can unilaterally terminate employment and change the terms and conditions of the working relationship on a prospective basis – including wages, benefits, and compensation – without liability for breach of contract. Retroactive modification, however, would typically be a breach of contract and violate state wage and hour laws.
Q: Who is entitled to overtime compensation?
A: Employees who are covered by the Federal Fair Labor Standards Act or the Minnesota FLSA and are not otherwise exempt from overtime provisions are entitled to overtime pay at one-and-a-half times their regular pay for hours they worked in excess of 40 or 45 hours per workweek.
Salaried employees can be eligible for overtime, if they are nonexempt. Nonexempt employees are entitled to overtime for any hours exceeding the 40-hour work week, regardless of how they are paid. If you are unsure whether a certain employee is exempt or nonexempt, we can advise you.
Q: Do employees have a right to privacy?
A: The most common way employers invade their employees’ privacy is to intrude on their seclusion, solitude, or private affairs. If the employer has a legitimate reason for the intrusion (e.g., to investigate theft or suspected illegal conduct), an intrusion reasonably limited to serve these legitimate interests is probably legal. Any company considering potentially intrusive action should notify employees in advance of the intended intrusion, to eliminate employees’ expectations of privacy. Additionally, a well-written policy can assist in defending the search against any claimed invasion of privacy. An experienced employment attorney can provide advice as to whether a proposed action might be overly intrusive.
Q: Can an employer perform background checks on applicants without violating their privacy?
A: Employers often perform extensive background checks, especially on applicants for high-level or highly sensitive positions. Although a release, usually included on the job application, is unnecessary in many circumstances, we recommend it for many types of background checks. Obtaining consent and releases for background checks is a good way to avoid liability in the application process.
Employers must also consider the Fair Credit Reporting Act (FCRA) when conducting a credit check, which addresses background investigations of employment applicants. In addition, the Americans with Disabilities Act prohibits pre-employment medical inquiries, such as questioning an applicant or doing a background search about his or her worker’s compensation history.
Q: May employees engage in organizing efforts and hand out literature regarding Unions on company property?
A: Yes. Employees may discuss unionism and solicit their coworkers, if these activities occur before and after their shifts or during lunch and break times; employees are not entitled to engage in these activities when they should be working. It may also be permissible for an employee to give coworkers union flyers or authorization cards in a lunchroom, locker room, or parking lot, but not on the work floor, where papers could create a hazard.
Q: May a company discriminate against alien workers?
A: No. It is illegal to discriminate against alien workers who are legally in this country and legally entitled to work here.
Q: May an employer hire illegal aliens?
A: Immigration Reform and Control Act of 1986 (IRCA) reaffirmed the historic illegality of hiring illegal alien workers. The IRCA also made the penalties more severe, with fines ranging up to $10,000 per illegal alien in the workplace for repeat offenders.
Q: Which employers are subject to COBRA?
A: An employer that employs 20 or more persons and maintains a group health plan must offer continuation coverage to qualified beneficiaries at their expense. Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), an “employee” can include an independent contractor. Continuation coverage must be offered to any covered employee and any qualified beneficiary, such as the employee’s spouse or dependent children.
There are severe punishments for failing to comply with COBRA. If you have been accused of failure to comply, it is important to consult with experienced employment and labor attorneys as soon as possible.