Areas of practice
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua.
OVERTIME AND MINIMUM WAGE VIOLATIONS

Whether, you are eligible for overtime pay, is not up to your employer, it’s is governed by the Fair Labor Standards Act, 29 U.S.C. §201, et seq, (FLSA).

Section 7(a)(1) of the FLSA prohibits employers from employing any worker for a workweek longer than forty hours unless the employee receives compensation at a rate not less than one and one-half times their regular rate or the employee falls within a recognized exemption.

If you are not sure whether your job falls within a lawful exemption to overtime, please call.  The law is very fact specific.  For instance, your job title may fall within an exemption but your job duties may not.

What if there are no records to prove you worked overtime?

Even if there are not records of your hours, or the records are not accurate; you may still have an overtime claim.  The FLSA mandates that employers keep accurate records. In situations, where no records exist, courts have held that the employee has the initial burden to prove that he or she performed work that they were improperly compensated for.  This can be established by your testimony, or even with your own handwritten records. If the employee produces sufficient evidence to show they worked over forty hours and were improperly paid; the burden, then shifts to the employer to produce evidence to negate the inference to be drawn from the employees’ evidence.

COMMON OVERTIME VIOLATIONS COMMITTED BY EMPLOYERS:

  1. Servers and Bartenders being paid less than $7.25 an hour, and required to share their tips with kitchen staff, managers, owners or other employees that do not interact with customers.
  1. Servers and Bartenders not being paid the correct hourly rate of pay when they work over forty hours in a work week.
  1. Employers who automatically deduct a set amount of time each day or shift for meal breaks. If you perform work during your meal break this may be a violation. Automatic deductions are allowed; however the best practice is not use them. To minimize wage and hour liability, an employer must “exercise its control” and see that work is not performed during unpaid meal breaks.
  1. Employer’s failure to pay time and half of your hourly rate when you work over forty hours in a work week. If you are always paid at your regular rate of pay this may be a violation.
  1. Employers paying a salary, regardless of the number of hours worked.
  1. Employers requiring employees to perform tasks “off-the-clock” at the beginning or end of the shift.
  1. Employer’s failure to pay employees for training time.
  1. “Volunteering” time to the employer. If the employer is aware that employees are “volunteering” and permits this, it could be a violation.
  1. Employers fail to pay employees for short rest breaks that are 10 or 15 minutes long.
  1. Employers deducting employees’ time spent working on the clock;
  1. Employers fail to pay employees who work through unpaid lunch.
  1. Employers fail to pay employees who clock out and continue to work “off the clock.”
  1. Employers misclassification of employees as “independent contractors” (for whom no tax and other mandatory withholdings must be made and who are not eligible for benefits). You are likely an employee and NOT an independent contractor if:
  1. You work exclusively for your employer;
  2. Your hours are fixed by your employer;
  3. Your wages are set by your employer;
  4. You are subject to employers supervision and control,
  5. You work exclusively at the employer’s place of business;
  6. Your employer provides the equipment, materials and/or tools;
  1. Employers permitting the employee to work “off the books.”
  1. Employers who do not keep accurate time records of daily start times, stop times, and total hours worked each week.
  1. Employers giving employees titles like “Manager,” “Foreman” and “Supervisor”  However the employee performs the same or similar job duties as other workers who are paid overtime.
  1. Assistant managers not being paid time-and-a-half for overtime.
  1. Not paying hourly employees for all hours worked.
  1. Not paying IT employees overtime. Depending upon your job duties this may be a violation.
  1. Deducting employees’ wages for uniforms or because the employee made a mistake that cost the employer money.
  1. Employers not paying for time spent traveling during the work day. Note: The time to work and home is generally not compensable unless special circumstances apply.
  1. Providing “comp time” in lieu of wages.

MINIMUM FEDERAL WAGE OF $7.25

In addition to overtime the FLSA also protects you if your employer takes deductions from your wages, and those deductions cause your wages to fall below federal minimum wage of $7.25 an hour.

If you think any of those examples may apply to you, please call Marybeth Mullaney for a free consultation (843) 588-5587 or email her info@mullaneylaw.net she may be able to help.

DISCRIMINATION BASED ON PREGNANCY – Title VII

In 1978, Congress amended Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., by enacting the Pregnancy Discrimination Act (PDA), making it illegal to discriminate against women because of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. It applies to private-sector and non-federal government employers with 15 or more employees.

If you plan to file a lawsuit under the PDA, you first must file a charge with the EEOC within 180 or 300 calendar days from the day the discrimination took place.
You also must obtain a “Notice of Suit Rights” (also known as a “right to sue letter”) from the EEOC before a lawsuit can be filed.
The EEOC will issue a right to sue letter after it completes its investigation of your charge. If the EEOC does not complete its investigation within 180 days of the filing of your charge (this happens quite often), you can request a right to sue letter at that time. The EEOC will then stop its investigation and issue the Notice of Right to Sue. You must file a lawsuit within 90 days of receiving the EEOC’s Notice of Right to Sue. Otherwise, your lawsuit is time barred.

*Please Note: If you are a Federal Employee the time limits set forth above are different. (they are usually shorter depending upon the issue.)

In a pregnancy discrimination case, the employee bears the ultimate burden of establishing that the employer discriminated against you because of’ your pregnancy.

The United States Supreme Court has held that woman may be entitled to special work accommodations related to their pregnancy, especially if your employer has accommodated other employees who are not pregnant. If your employer denies your request for an accommodation they must have a “legitimate, non-discriminatory reason” for doing so.

Pregnant employees may have additional rights under the Family and Medical Leave Act (FMLA).

If you believe you have been unfairly denied a reasonable accommodation related to your pregnancy or have been discriminated against because of

DISCRIMINATION BASED ON RACE-TITLE VII

Discrimination and harassment in the workplace can come in many forms.
And although such misconduct can sometimes be overt, such as the use of racial slurs or denial of advancement opportunities, it can also be subtle or even concealed. Discrimination occurs when a member of a protected class is are treated differently than his or her peers.

It applies to private-sector and non-federal government employers with 15 or more employees.
If you plan to file a lawsuit under Tittle VII, you first must file a charge with the EEOC within 180 or 300 calendar days from the day the discrimination took place.
You also must obtain a “Notice of Suits Rights” (also known as a “right to sue letter”) from the EEOC before a lawsuit can be filed.
The EEOC will issue a right to sue letter after it completes its investigation of your charge. If the EEOC does not complete its investigation within 180 days of the filing of your charge (this happens quite often), you can immediately request a right to sue letter at that time.
You must file a lawsuit within 90 days of receiving the EEOC’s right to sue letter, otherwise, your lawsuit is time barred.

*Please Note: If you are a Federal Employee the time limits set forth above are different. (they are usually shorter depending upon the issue.)

RETALIATION

The rights afforded to employees under Federal Statutes such as the FMLA, FLSA, ADA, ADEA, PDA, and Title VII, include protections from retaliation for exercising those rights.  Some of the Federal Statute contain explicit prohibition against retaliation, others have interferences that prohibit an employer from discriminating or retaliating against employees for exercising or attempting to exercise their rights.

 

Many retaliation claims, require employees to prove:

 

(1) that he or she engaged in protected activity;

 

(2) that the employer took adverse action against him or her; and,

 

(3) that the adverse action was causally connected to the employees protected activity.

 

 

Examples of “protected activity” in the work place are:

 

  1. Resisting sexual advances, or intervening to protect others
  2. Refusing to follow orders that would result in discrimination
  3. Communicating with a supervisor or manager about employment discrimination, including harassment
  4. Complaining to a supervisor or manager about not being paid overtime wages
  5. Filing or being a witness in an EEO or EEOC charge, complaint, investigation, or lawsuit
  6. Answering questions during an employer investigation of alleged harassment
  7. Requesting accommodation for a disability or for a religious practice.

 

Engaging in protected activity, may not always protect you from discipline or discharge. Employers are free to discipline or terminate workers if are motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences.

 

WRONGFUL TERMINATION

South Carolina is an employment “at will” state, which is also referred to as a “right to work state”.  An at-will employee may be terminated at any time for any reason; or for no reason, with or without cause.  However, there are Federal Laws that offer some protections.  For instance, Federal Law may protect you, if your termination was based on race, age, disability, gender or if you were terminated for engaging in “protected activity”. Please read the “retaliation tab” for more general information on this.

The South Carolina Supreme Court recognizes a cause of action for Wrongful Termination if you have been fired for a violation of public policy. SC Courts have held there was a wrongful termination, in situations where an employer requires an employee to violate the law as a condition of their employment or the termination itself is a violation of law.

If you are uncertain about whether you have a potential claim against your employer call (843) 588-5587 or email info@mullaneylaw.net to discuss what options may be available to you.

SEXUAL HARASSMENT- TITLE VII

If you have experienced sexual harassment at work, you may have a claim under Title VII of the Civil Rights Act of 1964.  Title VII is a federal law that prohibits employers from discriminating against employees based on sex, race, color, national origin, and religion. It applies to private-sector and non-federal government employers with 15 or more employees. 

If you plan to file a lawsuit under Title VII, you first must file a charge with the EEOC within 180 or 300 calendar days from the day the discrimination took place.

You also must obtain a “Notice of Suit Rights” (also known as a “right to sue letter”) from the EEOC before a lawsuit can be filed.

The EEOC will issue a right to sue letter after it completes its investigation of your charge. If the EEOC does not complete its investigation within 180 days of the filing of your charge (this happens quite often), you can immediately request a right to sue letter at that time. The EEOC will then stop its investigation and issue the Notice of Suit Rights. You must file a lawsuit within 90 days of receiving the EEOC’s Notice of Suit Rights. Otherwise, your lawsuit is time barred

 

*Please Note: If you are a Federal Employee the time limits set forth above are different. (they are usually shorter depending upon the issue). 

 

Recently, victims of sexual harassment have found their voice to speak-up both privately and publicly. It takes a lot of courage. If you are being sexually harassed by your supervisor, your mentor, or your co-worker, you can do something about it. 

Courts recognize two categories of sexual harassment:

  • Quid Pro Quo, where sexual consideration is demanded in exchange for job benefits; Examples of this are
    1. Promised advancement or a raise in exchange for a sexual relationship.
    2. Submitting to sexual advances, inappropriate texts just so you can keep your job, get a raise or be scheduled to work.
    3. Rejecting sexual advances, requests, “to go out”, or inappropriate texts; and as a result, you are fired, demoted, your hours are reduced, you are passed over for a promotion or suffer another type of adverse employment action.

 (2)     Hostile Work Environment harassment that creates an offensive or hostile work environment.

hostile work environment exists where unwelcome verbal or physical conduct unreasonably interferes with your ability to do your job, or creates an offensive, intimidating, or hostile working environment.

A hostile or abusive work environment is a violation even if the unwelcome sexual demands are not linked to concrete employment benefits.

Even general, non-sexual comments – such as comments about one gender – can create a hostile work environment where the comments are frequent or severe.  However, minor or isolated incidents, such as harmless lighthearted teasing do not amount to a hostile work environment.  The standard is whether a reasonable person would consider the conduct intimidating, hostile, or abusive.

 

DISCRIMINATION BASED ON AGE – ADEA

The Age Discrimination in Employment Act (ADEA) makes it illegal to discriminate against someone because of their age. This law protects people who are 40 years or older.  Employers are generally not allowed to hire, fire, promote, or decide an employee’s compensation based on their age.

It applies to private-sector and non-federal government employers with 20 or more employees. 

If you plan to file a lawsuit under ADEA, you first must file a charge with the EEOC within 180 or 300 calendar days from the day the discrimination took place.

You also must obtain a “Notice Suit Rights” (also known as a “right to sue letter”) from the EEOC before a lawsuit can be filed.

If you plan to file an age discrimination lawsuit, you can file a lawsuit in court any time after 60 days have passed from the day you filed your charge (but no later than 90 days after you receive notice from the EEOC that their investigation is concluded).  You must file a lawsuit within 90 days of receiving the EEOC’s Notice of Suit Rights, otherwise, your lawsuit is time barred.

*Please Note: If you are a Federal Employee the time limits set forth above are different. (they are usually shorter depending upon the issue.)

The employee has the burden of proving his or her age was the deciding factor in their dismissal or demotion.  The United States Supreme Court has held that to succeed on a claim under the ADEA you must be able to show by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action.

DISCRIMINATION BASED ON DISABILITY-ADA

The Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 make it illegal to discriminate against a person with a disability. The ADA prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications and access to state and local government’ programs and services.

The ADA applies to private-sector and non-federal government employers with 15 or more employees. If you plan to file a lawsuit under APA, you first have to file a charge with the EEOC within 180 or 300 calendar days from the day the discrimination took place.
You also must obtain a “Notice of Suits Rights” (also known as a “right to sue letter”) from the EEOC before a lawsuit can be filed.
The EEOC will issue a right to sue letter after it completes its investigation of your charge. If the EEOC does not complete its investigation within 180 days of the filing of your charge (this happens quite often), you can request a right to sue letter at that time. The EEOC will then stop its investigation and issue the Notice of Suits Rights. You must file a lawsuit within 90 days of receiving the EEOC’s Notice of Suits Rights. Otherwise, your lawsuit is time barred.

*Please Note: If you are a Federal Employee the time limits set forth above are different. (they are usually shorter depending upon the issue).

An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all the impairments that are covered.

ADA prohibits discrimination in recruitment, hiring, promotions, training, and pay. It restricts questions that can be asked about an applicant’s disability before a job offer is made. The ADA requires employers to make reasonable accommodations.

A reasonable accommodation is assistance or changes to a position or workplace that will enable an employee to do his or her job despite having a disability. Under the ADA, employers are required to provide reasonable accommodations to qualified employees with disabilities, unless doing so would pose an undue hardship.

Employees and applicants do not have to request an accommodation in writing, nor do they have to use any special words. You don’t have to specifically mention the “ADA” or use the words “reasonable accommodation.”

Your employer doesn’t have to provide the specific accommodation you request, but it must work with you to come up with an effective accommodation unless doing so would pose an undue hardship, significant difficulty or unreasonable expense.

If you believe you have been unfairly denied a reasonable accommodation, contact Marybeth call (843) 588-5587 or email info@mullaneylaw.net to discuss what options may be available to you.

CIVIL RIGHTS

Civil rights are enforceable rights or privileges, which if interfered with by another, gives rise to an action for injury. Discrimination occurs when the civil rights of an individual are denied or interfered with.

 

Examples of Civil Rights:

Freedoms of Speech

Freedom of Religion

The Right to Assembly

The Right to Petition the Government

The Right to Due Process

Freedom from Discrimination for Protected Classes, (such sex, race, and national origin)

 

Civil rights violations take many forms and often appear as legally valid actions taken by law enforcement or public officials.

WORKERS COMPENSATION RETAILATION

If you are fired in retaliation for filing a workers’ compensation claim, you can sue your employer in civil court for lost wages and reinstatement. S.C. Code Ann. § 41-1-80 states, “No employer may discharge or demote any employee because the employee has instituted or caused to be instituted, in good faith, any proceeding under the South Carolina Workers’ Compensation Law or has testified or is about to testify in any such proceeding.”

The burden of proof is upon the employee; it requires proof that the employee would not have been discharged “but for” filing the claim for workers’ compensation. 

If you are no longer able to work or if you receive compensation for total permanent disability this claim may not be available to you.

WAGE THEFT (S.C. Code Ann § 41-10-10, et seq)

South Carolina has a state statute known as the South Carolina Payment of Wages Act (SCPWA) which offers protection to employees. The purposes of the SCPWA is to protect employees from the unjustified and willful retention of wages by their employer. Some of the protections offered are:

1. An employer cannot take deductions an employees’ wages unless it is required by state or federal law and the employer has given the employee written notification of the deductions.
2. Any changes to an employees’ wages, must be made in writing at least seven calendar days before they become effective. The employer has the option of giving the an employees written notification by posting the terms conspicuously at or near the place of work.
3. If an employee resigns or is terminated, the employer must pay the employee for all wages due within 48 hours of the time of separation or the next regular payday (which may not exceed 30 days).
4. The employer violates an implied employment agreement
5. The employer does not pay you for commissions you earned

If you think you be owed wages by your employer, feel free to call the office and discuss the matter with Marybeth Mullaney. You may also contact the South Carolina Department of Labor Wage & Hour Division

 

FAMILY AND MEDICAL LEAVE ACT OF 1993 (FMLA)

The Family and Medical Leave Act of 1993 (FMLA) FMLA entitles eligible employees to 12 workweeks of unpaid leave during any 12-month period for numerous serious health conditions.

The FMLA defines an “eligible employee” as an employee who has been employed (1) for at least 12 months by the employer, and (2) for at least 1,250 “hours of service” with such employer during the previous 12-month period.

For your employer to be subject to the FMLA, you must work at a location where the company employs 50 or more employees within 75 miles.

In addition to providing a right to unpaid leave in certain situations, the FMLA also protects employees from discrimination or retaliation for exercising their substantive rights under the FMLA.

What if you didn’t specifically ask for FMLA leave? Case law and federal regulations make it clear, however, that employees do not need to invoke the FMLA to benefit from its protections. The regulations do not require the employee to “expressly assert rights under the FMLA or even mention the FMLA”; instead, the employee may only state that leave is needed for an expected birth or adoption, for example. After the employee makes such a statement, the responsibility falls on the employer to inquire further about whether the employee is seeking FMLA leave.

1037-D Chuck Dawley Blvd Suite 104
Mount Pleasant, SC 29464

Fax: 843-593-9334

Disclaimer

The materials presented on the Mullaney Law website are for informational use only. It is not intended as professional advice. The services of a competent professional should always be sought if legal or other specific expert assistance is required.