Employment Disputes: Knowing Your Position

Montana is the notable state departing from pure at-will employment. Elsewhere, the question is generally not whether a reason was fair but whether it fell within a prohibited category.

The main exceptions

Discrimination on protected characteristics is prohibited by federal law: race, colour, religion, sex including pregnancy and, following Bostock v. Clayton County, sexual orientation and gender identity, plus national origin, age for those 40 and over, disability and genetic information.

Many states and cities add protected categories beyond the federal list, so state law frequently provides broader protection than federal law.

Retaliation for protected activity is separately prohibited — reporting discrimination, filing a safety complaint, taking protected leave, participating in an investigation, or in many cases reporting legal violations.

Contractual protection applies where an employment contract, collective bargaining agreement or in some circumstances an employee handbook creates enforceable commitments about dismissal.

Wage and hour issues

The Fair Labor Standards Act governs minimum wage, overtime and classification. Non-exempt employees must receive overtime for hours over 40 in a workweek at time and a half.

Misclassification is common, both classifying employees as exempt when the duties do not qualify, and classifying workers as independent contractors when the relationship is one of employment. Job title does not determine exempt status; actual duties and salary level do.

Off-the-clock work, unpaid preparation time and improper deductions are frequent wage claims. State law often provides greater protection than federal law, including daily overtime in some states.

Leave protections

The Family and Medical Leave Act provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons, subject to tenure and hours requirements.

Many states have enacted paid family and medical leave programmes with broader coverage. The Pregnant Workers Fairness Act requires reasonable accommodation for pregnancy-related limitations.

Disability accommodation under the ADA requires an interactive process to identify reasonable accommodations, and failure to engage in that process can itself constitute a violation.

Filing deadlines are short

Discrimination claims generally require filing a charge with the EEOC or an equivalent state agency before suing, and the deadline is commonly 180 days from the discriminatory act, extended to 300 days where a state agency has jurisdiction.

These deadlines are considerably shorter than most other legal claims and are strictly applied. Missing one usually ends the claim.

Wage claims have their own deadlines, generally longer, and state agency processes differ.

Documentation

Keep contemporaneous records: dates, what was said, who was present, and copies of relevant communications. Contemporaneous notes carry more weight than later recollection.

Retain copies of your contract, handbook, performance reviews, pay records and any written commendations, ideally stored personally rather than only on employer systems, since access typically ends on termination.

Be careful about taking confidential employer documents, which can itself create liability. Records concerning your own employment and communications you were party to are generally on safer ground, but advice is worth taking.

Severance and releases

Severance agreements typically require releasing claims in exchange for payment. They are negotiable more often than employees assume, on amount, references, benefits continuation and the scope of the release.

Employees aged 40 and over are entitled under the Older Workers Benefit Protection Act to a minimum consideration period — commonly 21 days, or 45 in group terminations — and a seven-day revocation period after signing.

Have any severance agreement reviewed before signing. Once a valid release is signed, claims are generally extinguished.