Think you know employment law? Better double-check.
These come from the law firm of Constangy Brooks & Smith, based on the cases they’ve come across when representing employers in lawsuits:
- “This is a right-to-work state. We can fire someone at any time, and for a good reason, a bad reason or no reason at all.” First, many states — particularly in the North and Northeast — are not right-to-work states. But even assuming the speaker really is in a right-to-work state, he has misunderstood what it means. A right-to-work state is one in which employees cannot be forced to join a union or pay union dues as a condition of employment. The speaker is confusing “right-to-work” with “employment at will.”
- “This is an employment-at-will state. We can fire someone at any time, and for a good reason, a bad reason or no reason at all.” Even if your state is technically employment-at-will (and not all are), you still can’t terminate an employee for an illegal reason. And there are an awful lot of illegal reasons — enough to practically negate at-will. In at-will North Carolina, example, many grounds for termination are unlawful, including because
- the employee refused to break the law
- the employee filed or is expected to file a workers’ compensation claim
- the employee’s race, color, national origin, sex, age, or disability
- the ground for termination is found to have violated a “public policy” of the State
- the employee filed a state workplace safety complaint
- the employee exercised her rights to join or not join a union, or
- the employee uses lawful products during nonwork hours.
- “Exempt = salaried.” This one is very common. Employers frequently believe that they have to pay overtime only to “hourly” employees and that everyone who is “salaried” is FLSA-exempt. Not true, and it can be very expensive to find out you’ve been doing it wrong, especially if you find that out during a collective action brought by all of your nonexempt “salaried” employees. Under the FLSA, being salaried is usually a necessary condition for exemption, but not a sufficient one. The employee must also satisfy the “duties” requirements for the executive, administrative, or professional exemptions.