PRACTICE AREAS
Anti-Discrimination Law
The United States, and its various States, have laws prohibiting discrimination in employment in the public and private sectors because of race, color, sex (including for being gay or transgender), religion, national origin, age, and disability.
Some of the major laws prohibiting employment discrimination include the Fifth Amendment (U.S. Const.)(federal employees); Fourteenth Amendment (states & municipalities); First Amendment (religious discrimination), Section 1981 (race)(includes private employers), Equal Pay Act of 1963 (sex-based wage discrimination), Title VI of the Civil Rights Act of 1964 (prohibits discrimination in all of the operations of an entity receiving federal funds, Title VII of the Civil Rights Act of 1964 (public and private employers), Age Discrimination in Employment Act (ADEA)(age), Immigration Reform and Control Act of 1986 (national origin and citizenship), and Americans with Disabilities Act (prohibits discrimination against qualified individuals with disabilities).
Wage and Hour Law
One major purpose of wage and hour laws is to protect workers from substandard wages and oppressive working hours. The Fair Labor Standards Act (FLSA) is the federal law enforcing wage standards; but, various state laws offer similar protection. The FLSA generally requires covered employers to pay their non-exempt employees a minimum wage of not less than $7.25 per hour. Employers must give employees overtime pay at the rate of time-and-a-half for time worked in excess of forty hours per week. Certain employees, however, are not entitled to overtime pay such as employees who work in a "bona fide executive, administrative, or professional capacity."
The time for filing a lawsuit for a FLSA violation is two years; but, an employee can sue within three years if the employer's violation is "willful." A willful violation means that the employer either knew or showed reckless disregard for whether its conduct violated wage and hour laws. The violation starts on the regular payday immediately following the work period for which services were rendered and not properly paid.
Retaliation -- The FLSA and state laws, like other anti-discrimination laws, prohibit employers from firing or otherwise discriminating against an employee who, in good faith, has filed any complaint (oral or written) about an alleged wage violation or started any proceeding under or related to the FLSA or testified or is about to testify in any such FLSA proceeding. Like a general FLSA claim, an employee asserting that retaliation has occurred must sue within two years of the alleged violation, or within three years if the violation was “willful.”
Labor Law
Labor-Management Relations Act (LMRA)
A staple of labor law is the doctrine of the "duty of fair representation (DFR)." A breach of the duty of fair representation occurs when a union's conduct is arbitrary, invidiously discriminatory, or in bad faith. Generally, employees allege that the union violated its duty to him/her by failing to represent the employee in the grievance-arbitration procedure or by acting in a discriminatory manner. Some DFR claims may be processed by the National Labor Relations Board.
But, in some situations, a member of a union-represented bargaining unit may file an action in federal court where it is alleged that the employer breached its obligations under a collective bargaining agreement and the union breached its duty of fair representation.
There is a six-month statute of limitations for taking a hybrid DFR case to court.
Labor-Management Reporting and Disclosure Act (LMRDA)
Title I of the Labor-Management Reporting and Disclosure Act (LMRDA), contains a bill of rights for members of labor organizations, that includes rights to freedom of speech and assembly. Title I of the LMRDA has been interpreted to protect speech that concerns union governance and union affairs. The test of its coverage is whether the speech touches in some way on concern for union democracy, or whether it is mostly unrelated to union governance. The question is what is the subject of the speech and what does it seek to accomplish. The more the speech relates to matters of significant interest to the membership as a whole, and the more it seeks to influence union policies or actions concerning such issues, the more such speech is likely to come within the scope of Title I.
Union members can meet together, express views, arguments, or opinions, or, at meetings, express views on candidates or union business, subject only to union's rules governing the conduct of meetings. Thus, a union cannot fine an employee for a letter attacking the union leadership no matter how vicious or false. At least one court has held that even slanderous speech may be protected by the LMRDA—the Second Circuit has ruled that a union cannot discipline a member for criticism of union officers that amounts to slander (e.g., calling union officials “crooks” and “liars”).
Hypothetical:
At a union meeting, the local union president threatened a shop steward with disciplinary action unless the steward withdrew his motion for election of shop stewards by secret ballot. Did the president's conduct deny the shop steward free speech under the LMRDA?
Generally, under the LMRDA, only elected union officials may sue for loss of union employment. Appointed union employees can not challenge removal from their position--except in one very, very narrow circumstance--where the union leadership fired an appointed official as a part of a scheme to stifle dissent within the union.
A violation of free speech and assembly rights under the LMRDA is normally governed by state general or residual personal injury statutes of limitations. In New York State, for example, the general personal injury statute of limitations is three years.
Merit Systems Protection Board
The Merit Systems Protection Board (MSPB) provides federal employees, and certain employees of the United States Postal Service, with a broad right to challenge, among other things, personnel decisions, such as suspensions in excess of 14 days, an indefinite suspension, a disciplinary reassignment, removal, demotion, reduction in grade, reduction in pay and a furlough of 30 days or less. In some cases, the MSPB may consider complaints of discrimination if a covered employee alleges that a basis for the personnel decision was discrimination on the basis of race, color, religion, sex, national origin, disability, genetic information, or age ("mixed case"). The MSPB will decide both the issue of discrimination and the personnel decision in accordance with its appellate procedures. When covered employees challenge a personnel action as discriminatory, that employee MUST choose to challenge the discriminatory action with the Equal Employment Opportunity Commission (EEOC) OR with the MSPB, both not both.
Certain employees of the United States Postal Service may utilize MSPB procedures to challenge personnel actions. These employees include veteran "preference eligible" employees, supervisors, management employees, or "employees engaged in personnel work in other than a purely confidential clerical capacity."
To be TIMELY, covered employees must file an appeal of a challenged personnel decision to the MSPB not later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of receipt of the agency's decision, whichever is later. The 30 day period also applies to "mixed" cases.