FAQ:

 

Wrongful Termination

 

Because, employment laws can be complex,  only a handfull of lawyers in

Mississippi handle such matters for employees on a regular basis.  If you

have questions about discrimination, harassment, FMLA claims, overtime

claims or other areas of employment law, we may be able to help you.  We

offer free phone consultation.  If you send an email, we will respond the

same day.

 

What does employment-at-will mean?  Most states including Mississippi

follows the employment-at-will doctrine under which an employee can quit

his or her job at any time for any reason.  However, the doctrine cuts both

ways, so your employer can fire you at any time for any reason – and I mean

any reason - a good reason, a bad reason, a stupid reason or a silly reason

or no reason at all. 

 

There are some very important exceptions that protect employees.  If your

have a written contract to work for a specified period, your employer must

comply with it..

 

The most important exceptions are under federal law.  Federal law makes

it unlawful for an employer to terminate an employee due to the employee’s

race, sex, religion, national, origin, age, disability status and a few other protected categories. 

 

An employee cannot be terminated for taking FMLA leave or contacting certain federal agencies to file complaints.  

 

Exceptions under state law protect employees who refuse to participate in criminal activity or who report criminal activity to the authorities. 

 

Most of the time an employer will not be brazen enough to recite one of these illegal reasons.  They make every effort to state some other reason.  You need an experienced employment attorney in order to help you sort through the facts to determine if you have a viable claim.  We offer free consultation over the phone.  If you have a question send us a quick email and we will respond to you the very same day.

 

Most employers do not openly admit that they are firing an employee for an illegal reason.    They will make us a cover story like poor performance or attendance or something like that.  It is the job of an employment attorney to investigate whether the employer’s stated reason is a pretext or a phony reason to hide the real reason which may be unlawful.

 

Have you been fired? If you’ve been fired, you may have a claim for wrongful termination.  However, you need an experienced employment attorney in order to help you to make that determination.  Most terminations will not result in a good lawsuit. 

 

Mississippi follows the employment-at-will doctrine which means that an employee can be terminated for a good reason a bad reason or no reason.  However, there are some exceptions under state and federal law.  Under federal law, it is unlawful if the employer is motivated in part by an employee’s race, sex, religion, national origin, age and a few other protective categories. 

 

Under state law, whistleblowers cannot be terminated for their reporting criminal activity or refusing to participate in criminal activity. 

 

What types of discrimination are prohibited? 

There are numerous federal, state, and local laws that prohibit unlawful discrimination in the work place. However, not all unfair treatment is against the law. 

 

The starting point is the doctrine of “at will” employment.  In blunt terms, this means that the company can fire an employee at any time, for any reason, or even for no reason. But a company may not fire an employee for an illegal reason (more on the next).  The upshot it that is a company decides to fire an employee, the law presumes that the termination was lawful, unless the employee can show that he or she was fired for an illegal reason.

 

It is not illegal to fire an employee without telling them the reason. Nor is it illegal to fire an employee for a reason that is “unfair.” For example, a mistaken accusation of theft.  It is not illegal to terminate an employee for fighting in the workplace; but it is illegal to terminate only certain kinds of employees for fighting in the workplace, but no others, for example men but not women. 

 

Several other laws also provide employees with protections from being wrongfully terminated, including the Family and Medical Leave Act (FMLA), and the Uniformed Services Employment and Reemployment Rights Act (USERRA).

 

If I was fired for a flimsy reason, do I have a claim for wrongful termination?  It depends. The term “wrongful termination” means a termination that is in violation of an employee’s contractual or statutory rights. It does not mean a termination that merely was “without cause.” An example would be an erroneous accusation of stealing from the company, which would be a valid reason for firing an employee. However, if the company violates an employee’s contractual or statutory rights – for example, by failing to abide by the terms of an employment contract or by discriminating against the employee – then the employee may have a claim for wrongful termination.

 

Mississippi is an employment-at-will state. This means that an employer can fire you for any reason, no reason, a good reason or a bad reason. However, it cannot be for an illegal reason.

 

Does my boss have to tell me why I am being fired?  No.  However, when an employer does not give a reason it is often because the employer is unsure of the legality of their termination and does not want to give the employee any ideas or ammunition to file a lawsuit.

 

Can I be fired if the company did not follow the progressive discipline steps in the Employee Handbook.  An employee handbook is an important tool for effective employer-employee relations. It notifies employees of the company's values, policies, and procedures; promotes compliance with labor and employment laws; and helps create an orderly, efficient, and transparent workplace.

 

Can my boss fire me if I do not have any write ups or documentation in my file?  A well-managed company clearly communicates its employees' duties and responsibilities (e.g., through written position descriptions), trains and supervises employees to ensure they are meeting these requirements, and provides regular, objective, consistent feedback (e.g., through written evaluations and, where necessary, disciplinary actions). A lack of accurate, complete, contemporaneous documentation can lead to liability in the event of a lawsuit by an employee.

 

My supervisor is harassing me and trying to make me quit.  If I quit, can I claim wrongful termination.  Some types of harassment are illegal and you can take legal action to stop it and recover damages.  However, not every type of harassment is illegal.  The harassment must be motivated by an illegal reason which means it must have something to do with your race, sex, religion, national origin, age and a few other protected categories.  The most common forms of illegal harassment are a hostile work environment based on race and or sex. 

 

Sexual Harrassment

The courts have required that sexual harassment must be severe and pervasive and not based on stray remarks and or isolated incidents.

 

My doctor recommends that I work from home as a way to accommodate my disability. Is my employer required to agree to this?   Normally not, unless you can show this is reasonable and will not disrupt the employer's normal practices. Equally, as an accommodation, you cannot force the employer to fire someone else to give you that person's job.

 

Can I be fired if another employee falsely accuses me of wrongdoing?  Yes, under some circumstances.  Some employers will terminate an employee simply on the suspicion of wrongdoing.  That is not illegal provided the employer is not using the reason as a pretext for some other unlawful discrimination.  An employer's good faith reliance on information - that later turns out to be phony or mistaken - does not make it an unlawful termination.  

 

FMLA LEAVE

 

What is the Family and Medical Leave Act (FMLA)?

The Family and Medical Leave Act or FMLA is a federal law that

requires employers to provide eligible workers with up to 12 weeks

of unpaid, leave each year for a serious health condition family and

medical reasons, including the birth of a child, to care for a family

member with a serious health condition (up to 26 weeks if the

family member is in the military), or to obtain treatment for the

employee’s own serious health condition. A serious health

condition could be as little as a trip to a doctor combined with

more than 3 days’ absence.  Moreover, like most employment laws,

the FMLA prohibits an employer from retaliating against an employee

for exercising his/her rights under the statute.

 

However, an employee must work a year before they are eligible under

the FMLA.  In addition, they must work at a worksite that has 50

employees within a 75-mile radius.

 

If a covered employee returns within the 12 weeks, the employee must be reinstated to their job.

 

Have you been fired for taking leave that might be covered by the FMLA?

Can I be fired if I have a doctor’s excuse to cover my absence.

Yes, unless the absence is protected by the Family Medical Leave Act.

 

Can I be fired while on leave for a worker’s comp injury.  Yes, unless the injury is covered by the Family and Medical Leave Act. See discussion under question__.  Unfortunately, Mississippi is the only state in the union where an employee can be terminated for filing a worker’s compensation claim.

 

Does an employer have to take me back after I recover from a worker’s comp injury?  No. In Mississippi, an employer has no obligation under the Worker's Compensation law to reinstate an employee after a worker’s comp leave.   However, an employee may have the right to reinstatement under the FMLA.  

 

Overtime

 

Should I be paid overtime after working 40 hours in a week. 

 Most employees in Mississippi are covered by federal wage and hour

laws, called the Fair Labor Standards Act (FLSA).  The basic rule is that

every employee - unless exempt - is entitled to minimum wage

(currently $7.25 per hour) and overtime (time-and-a-half over

40 hours in a work week).

 

Are you not getting paid overtime? Federal law mandates that

you be paid the minimum wage and receive time-and-a-half after

40 hours. There are a few exceptions to this law.  However, many

employers take short cuts in order to take advantage of these

exemptions when they do not apply.  Many employees are required

to work off the clock or work through their lunch hour.  Other times

they can be misclassified as a supervisor or manager in order to avoid

being paid overtime.  If you have any doubt about whether you should

be receiving overtime, send us a short email about your situation and

will respond the same day.

 

Certain types of “white collar” employees, e.g., executive, administrative, professionals, computer professionals, and outside salespersons are exempt and are not entitled to overtime compensation. The rules governing these exceptions are strict. Generally speaking, unless an employee exercises significant independence and discretion in completing his/her assignments, the employee probably is entitled to overtime. Misclassifying employees as “exempt” from overtime rules is one of the most common employment law mistakes made by businesses.

 

Are salaried employees automatically exempt?  My boss says secretaries do not get overtime because they are paid a salary. Is he right?   No.  Getting a salary does not exempt an employee from the wage hour laws.  Exemptions are based on the job duties - not how they are paid.  Secretaries and other clerical employees are not exempt and are therefore entitled to overtime after 40 hours regardless of whether they are paid a salary or an hourly rate.    

 

A common violation is when a company misclassifies non-exempt employees as exempt.

In general, all employees are entitled to minimum wage and overtime pay unless they are "exempt" under the federal wage hour law.  The most common exemptions (e.g., for executive, administrative, and professional employees) are narrow and only apply in limited circumstances.  As a result, many employees are misclassified as exempt when in fact they are entitled to overtime after working 40 hours in a week.

 

Misclassifying employees as independent contractors. In general, only workers who operate their own separate businesses are "independent contractors." Few workers meet this test; in fact, most workers are considered "employees" under the law, which means they are entitled to the full range of workplace protections.

 

What is the difference between an “independent contractor” and an “employee”?

Generally speaking, an independent contractor is in business for him/herself and is not the employee of another business. For example, an outside attorney retained by a company to provide employment law advice is an independent contractor; whereas a staff attorney who is on the company’s payroll is an employee. This distinction is important because most employment laws do not apply to independent contractors. In making this distinction, the key issue is the degree of control exercised by the business over the worker.

 

Am I entitled to a 15-minute break and a lunch hour?

 

The wage hour due laws do not require an employer to pay sick pay or vacation time.  It further does not require that the employer give you breaks.

 

Sexual Harassment

 

Understanding sexual harassment and your rights. 

Has a co-worker made unwelcomed sexual advances toward you? 

Has our supervisor made you uncomfortable because of comments of

a sexual nature.  If you believe you are being sexually harassed at work,

now is the time to take action. Sexual harassment is a form of gender

discrimination prohibited by federal employment statutes.  It includes

conduct such as unwelcomed sexual advances, request for sexual favors,

and verbal and physical harassment that is sexual in nature.  The law

protects both male and female employees from such harassment

regardless of whether the harasser is male or female.

 

Sexual harassment is actionable if it severe or pervasive or occurs so

frequently that the workplace becomes offensive or hostile. As an

example, sexual harassment occurs when a manager, co-worker or

customer:  touches you in inappropriate ways including hugging, kissing,

patting or deliberately brushing up against you.

 

Ask questions or comments about your clothing, your body or your sex life.

Tells sexual jokes you find offensive, or makes other sexually suggestive remarks even though you have objected;

 

Threatens to deny you a promotion, demote you or terminate you if you refuse to accept a date or have physical contact; or

 

Displays posters, magazines, pictures or screen savers that are sexual in nature, or circulates explicit or sexually suggestive emails.

 

You do not have to put up with sexual harassment in the workplace.  Call us for a free telephone consultation or send us an email to explain your situation.  If you have been wrongfully terminated or otherwise retaliated against in conjunction with sexual harassment or reporting sexual harassment, we can offer sound counsel. 

 

My boss keeps making comments about my appearance and about sexual innuendoes.  Do I have a claim for sexual harassment?
Tell your boss his behavior is making you uncomfortable and he must stop immediately. If he persists, you can file a complaint of sexual harassment with a federal agency called the United States Equal Employment Opportunity Commission (EEOC).

 

Understanding sexual harassment and your rights.  Has a co-worker made unwelcomed sexual advances toward you?  Or emails from your supervisor making you uncomfortable because they contain sexual innuendos?  If you believe you are being sexually harassed at work, now is the time to take action. Sexual harassment is a form of gender discrimination prohibited by federal employment statutes.  It includes conduct such as unwelcomed sexual advances, request for sexual favors, and verbal and physical harassment that is sexual in nature.  The law protects both male and female employees from such harassment regardless of whether the harasser is male or female.

 

Sexual harassment is actionable if it severe or pervasive or occurs so frequently that the workplace becomes offensive or hostile. As an example, sexual harassment occurs when a manager, co-worker or customer:  touches you in inappropriate ways including hugging, kissing, patting or deliberately brushing up against you.

 

Ask questions or comments about your clothing, your body or your sex life.

Tells sexual jokes you find offensive, or makes other sexually suggestive remarks even though you have objected;

 

Threatens to deny you a promotion, demote you or terminate you if you refuse to accept a date or have physical contact; or

 

Displays posters, magazines, pictures or screen savers that are sexual in nature, or circulates explicit or sexually suggestive emails.

 

You do not have to put up with sexual harassment in the workplace.  Call us for a free telephone consultation or send us an email to explain your situation.  If you have been wrongfully terminated or otherwise retaliated against in conjunction with sexual harassment or reporting sexual harassment, we can offer sound counsel. 

 

My supervisor asked me for a date. Is that sexual harassment?

Probably not. In general, sexual harassment occurs when an employee is subjected to sexually-oriented comments and behavior (not necessarily directed at the employee) that are so severe or pervasive as to create an offensive and abusive working environment (also known as a “hostile workplace”). A single incident, unless extremely serious, usually does not constitute sexual harassment. For example, if a supervisor politely asks an employee for a date, that is not sexual harassment. But if the supervisor threatens to demote or fire the employee if he/she refuses, that is sexual harassment. Employees who believe they have been sexually harassed should complain to management and/or human resources promptly, or they may be barred from asserting a sexual harassment claim in court.

 

Can I get out of a non-compete agreement that I signed but did not read when I was hired?

It might be possible, depending on how the language reads and the circumstances behind your termination.

 

Can I get unemployment compensation?

 

Can an employer deny me a job because I am physically disabled? Under federal law it is unlawful for an employer to discriminate against a disabled person who is physically able to perform the job.  Wrongful termination is a form of illegal retaliation by an employer.  It occurs when and employer fires an employee for engaging in some form of protected activity such as reporting sexual harassment or participating in a discrimination claim.  The law protects employees who report illegal activity or misconduct by an employer or co-worker from retaliation.  If an employer terminates an employee for reporting or threatening to report illegal or fraudulent conduct, the employee can file a retaliation claim against the employer.

Every situation is unique and different laws apply based on the specific facts of your case.  We will be happy to discuss the facts of your case over the phone in a free consultation or by email.

The firm knows the value of strategic negotiation and when it’s appropriate to take an aggressive approach or some other approach. 

 

Whistleblower

 

Many retaliation cases involve whistleblower claims.  A whistleblower is a person

who reports illegal or dishonest conduct by a company, a government agency or

other organization to the public or to a person in authority.  It is illegal for an

employer to retaliate against a whistleblower by terminating or otherwise

mistreating them.

 

Whistleblower claims arise when an employee reports, threatens to report or

refuses to participate in certain types of illegal or improper activities such as

those that threaten the health safety or welfare of citizens.

 

Many retaliation cases involve whistleblower claims.  A whistleblower is a person

who reports illegal or dishonest conduct by a company, a government agency or

other organization to the public or to a person in authority.  It is illegal for an

employer to retaliate against a whistleblower by terminating or otherwise mistreating them.

Whistleblower claims arise when an employee reports, threatens to report or refuses to participate in certain types of illegal or improper activities such as those that threaten the health safety or welfare of citizens.

 

 What is a whistleblower?   A whistleblower is a person who reports (blows the whistle) on criminal or unlawful activity to the authorities or to management within their own company.  There are a number of federal statutes that protect a specific kinds of activity. In addition, Mississippi has an exception to the employment at will doctrine that prohibits employers from firing an employee that has reported criminal activity or has refused to participate in criminal activity.

 

Not having an employee handbook.  An employee handbook is an important tool for effective employer-employee relations. It notifies employees of the company's values, policies, and procedures; promotes compliance with labor and employment laws; and helps create an orderly, efficient, and transparent workplace.

 

Not documenting employee job performance.  A well-managed company clearly communicates its employees' duties and responsibilities (e.g., through written position descriptions), trains and supervises employees to ensure they are meeting these requirements, and provides regular, objective, consistent feedback (e.g., through written evaluations and, where necessary, disciplinary actions). A lack of accurate, complete, contemporaneous documentation can lead to liability in the event of a lawsuit by an employee.

 

Have you been harassed on the job?  Some types of harassment are illegal and you can take legal action to stop it and recover damages.  However, not every type of harassment is illegal.  The harassment must be motivated by an illegal reason which means it must have something to do with your race, sex, religion, national origin, age and a few other protected categories.  The most common forms of illegal harassment are a hostile work environment based on race and or sex. 

The courts have required that sexual harassment must be severe and pervasive and not based on stray remarks and or isolated incidents.

 

You need an experienced employment lawyer to sort through these facts to determine if  you have a viable legal claim.

 

Can I get unemployment compensation?

 

Am I entitled to a 15-minute break and a lunch hour?

 

Workplace discrimination may include a broad range of conduct such as failing to promote an employee because of the employees age or paying an employee less because she is a woman.  Discrimination includes less favorable treatment or mis-treatment due to age, race, national origin, religion, sex, disability or pregnancy.

 

The wage hour due laws do not require an employer to pay sick pay or vacation time.  It further does not require that the employer give you breaks. 

 

Where can I find additional information about employment laws?

 

The internet is a very useful tool for learning about employment law. Try searching using your favorite search engines (e.g., Google, Yahoo, Bing, Ask, etc.).

There are several government websites that provide a wealth of information about most employment law subjects:

U.S. Equal Employment Opportunity Commission
U.S. Department of Labor/Wage and Hour Division
OSHA\

Severance agreements and separation agreements:

 

If my employer fires me, am I entitled to some severance pay?
No. There is no law that says an employer must pay severance. However, this is something you can try to negotiate.  Check your employee handbook, if your employer has one, to see what it provides for severance.

 

If my employer fires me, am I entitled to severance pay?  No. There is no law that says an employer must pay severance. However, this is something you can try to negotiate.  Check your employee handbook, if your employer has one, to see what it provides for severance.

 

Am I entitled to all my accrued vacation paid out when I leave my job?
It depends on your employer's policy. If the employer has an express policy that it does not pay out accrued vacation when an employee leaves, then the employer will not be forced to do otherwise.

 

Am I allowed to see my personnel file?  No, unless your employer is willing to show it to you. An employer is not obligated to let an employee see his or her personnel file.

 

Severance pay. Does my company have to pay severance pay if I am fired or laid off?

 

I have been fired and offered a severance package what should I do? Before you sign a severance agreement, you should have an attorney review it to determine if it is in your best interest. 

Can an employer deny me a job because I am physically disabled? Under federal law it is unlawful for an employer to discriminate against a disabled person who is physically able to perform the job.  Wrongful termination is a form of illegal retaliation by an employer.  It occurs when and employer fires an employee for engaging in some form of protected activity such as reporting sexual harassment or participating in a discrimination claim.  The law protects employees who report illegal activity or misconduct by an employer or co-worker from retaliation.  If an employer terminates an employee for reporting or threatening to report illegal or fraudulent conduct, the employee can file a retaliation claim against the employer.

Every situation is unique and different laws apply based on the specific facts of your case.  We will be happy to discuss the facts of your case over the phone in a free consultation or by email.

The firm knows the value of strategic negotiation and when its appropriate to take an aggressive approach or some other approach. 

 

I have been fired and offered a severance package that includes a release.  Should I sign it? Before you sign a severance agreement, you should have an attorney review it to determine if it is in your best interest. 

 

 

 

 

 
 
 
 

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