Ian Alert: If My Office Is Closed Due to a Hurricane, Am I Entitled To Be Paid?

It's that most awful time of the year, that is, time to re-run this popular and necessary column. I hope you make out okay in Hurricane Ian and suffer no damage. However, you may be wondering if you're getting paid.

Whether you’re entitled to be paid when the office is closed depends on whether you are “exempt” salaried or not. Just being salaried doesn’t necessarily mean you aren’t entitled to overtime. It’s possible to be salaried and still non-exempt from the requirements of the Fair Labor Standards Act. Many employers misclassify employees as exempt to avoid paying overtime. If you work more than forty hours per week, it’s better to be non-exempt. But in the case of weather and emergency closings, it’s probably better to be exempt.

Exempt employees: If you’re exempt and you worked any portion of the work week, you have to be paid your entire salary, whether or not the office is closed for a natural disaster such as hurricane, snow, tornado, or flood. Further, Department of Labor regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” This would include natural disasters, so if you are able to work after a storm then you must be paid even if you didn’t work any portion of the week. If you can’t get there on time or have to leave early due to the flooding but the office is open, they can’t deduct for any partial days you worked.

Vacation time and PTO: Your employer can deduct from your vacation time or PTO for the time taken. However, if you have no accrued vacation or PTO time available, they still can’t deduct from your pay if you’re exempt.

Non-exempt employees: If you are non-exempt, then your employer doesn’t have to pay for the time the office is closed. However, if your company takes deductions and you’re a non-exempt salaried employee it may affect the way overtime is calculated.

Who Is Exempt?: You’re not exempt unless you fall into very specific categories, such as executives, administrative employees, or learned professionals. Plus, your job duties must fall within those categories, not just your title. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This is one of those rare times when it's better to be exempt, so it's the one time you can be glad that President Obama's overtime expansion was gutted.

Pay For Reporting To Work: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. Florida has no such requirement (so maybe it’s a good time to start complaining to your legislators). If it veers nortn, South Carolina has some protections for state employees but none that I've found for private sector employees.  North Carolina does have a law regarding employer adverse weather policies (they aren't required to have them though):

If an employer does establish an adverse weather condition policy, then pursuant to N.C.G.S. §95-25.13(2), the employer must: "Make available to its employees, in writing or through a posted notice maintained in a place accessible to its employees, employment practices and policies with regard to promised wages." The employer must comply with its own adverse weather policy until such time as the employer changes its policy in writing, notifies its employees of such changes prior to the effective date, and does not take away retroactively any benefits already earned, pursuant to N.C.G.S. §95-25.13(3).

Disaster Unemployment Benefits: If your state is declared a disaster, you may qualify for disaster unemployment assistance. If your state gets hit, here's where to start searching to see if you can get disaster unemployment assistance. It may take a couple days to update, so keep checking. I checked before posting and the Ian-affected areas weren't there yet.

If you’re hit with a big storm, get in touch with your supervisor or manager as soon as possible to find out whether or not you’re expected to be at work. If you can’t get in touch with anyone, then only go in if it’s safe for you to do so.

Noncompete Answers - Company Lost The Customer Contract; Employer Owes Me Wages

On the ever-popular topic of non-competition agreements, I continue to get tons of questions. I'm answering some more today.

Is My Noncompete Agreement Enforceable If My Employer Owes Me Wages?

Q: My former employer wrote such an ambiguous non-compete that it virtually eliminates any chance of me finding any employment in my field. Plus they owe me $9500 and say they won't pay unless I provide them with proof I'm not competing.

They made exceptions to the non-compete during my employment and now say that I'm violating the agreement by continuing to do the exceptions that they allowed.

They are in Illinois - I am in Florida. 

Mr. High School

Hi Mr. High School. You raise several interesting issues, so I'll touch on all of them quickly. The one that I hear most often is whether a noncompete agreement is enforceable if your employer owes you wages. The answer is a whopping, clear-as-mud, maybe. If your noncompete agreement is part of an employment agreement that sets out your wage rate and other terms and conditions of employment, then the failure to pay those wages is a breach of the agreement. If they breached before you started working for a competitor, then the breach should eliminate your obligations. However, this may vary from state to state (and judge to judge) so I can't predict how a judge in the state where it ends up in court would see it.

If the noncompete agreement is separate and doesn't include any promises about wages, then the issue is less clear. I'd still argue that the failure to pay the wages owed negates your obligations, but the question would really depend on the specific facts and contract language. I'd suggest talking to an employment lawyer in your state about this to be sure.

If they've made exceptions to the noncompete and allowed you (or coworkers) to compete in specific circumstances or with specific companies, it will be really tough for them to argue that they have a legitimate interest to protect in enforcing the restrictions against you alone (or you now, when you've previously been allowed).

You also mention that they're in a different state than you. If the agreement says which state's law applies, then that's probably which state law you'll be dealing with. If the agreement is silent on which state's law applies, it's probably the state where you executed the agreement. Frankly, Florida law is so horrid on noncompetes that you're probably better off if you can apply Illinois law (but I'll defer to any Illinois lawyers out there who disagree.)

My Company Lost It's Contract - Can I Stay?

I got two questions on this topic. Here they are:

Hi I signed a contract with a company that states I cannot work for myself, or any other company in my line of profession for 1 yr.. My contract is up in may and my boss has moved to South America. Since being over there he has messed my wages up and hardly replies to my emails. The customers are not contracted with this company and I would like to take them on myself. If my company has gone elsewhere and I took over the duties for the customers they left behind, where do I stand?

Lee B.

Hi Lee. I answered the issue about the unpaid wages above. I'll answer your question about your company moving after the question below.

Sounds like this is more of a hot topic than I knew. I am a victim also--I started working for company x in March 2004. A while after I started, the manager's position came open and they offered it to me. I am pretty sure it was at this time they made me sign a non-compete. (I am contract labor). The company that owned the building I was working in then was purchased by another company. In 2008 this building closed down and I transferred to another building. About 6 months later I was again asked to sign a non-compete. Now the company "x" that I work has lost their contract in the building so I am being told because of the non-compete I cannot stay and do the same type of work for the new company.

I applied and was going to be hired by the company that owns the building for a totally different type of job, but they are now saying they have a "policy" that states I cannot work for them for 12 mos. then have to reapply, when I was originally told by my supervisor that I could do any other job in the building other than the services they provide. Now that has changed. So, now am waiting for an answer from the new company as to whether or not they can get me out of the non compete--which is slim to nothing chance. If not I will be looking for a new job and am restricted can't do the three jobs listed above, OR work in any of the buildings owned by current building I'm in.

I live in a rural area where there are virtually NO JOBS so I may be in the unemployment line because of this stupid non compete! I will never sign one again. 

Tired of This

Hi Tired of This. I'm tired of ridiculous noncompete restrictions too, which is why I enjoy fighting them when I can. To answer Lee and you, if your company has either abandoned a geographic area of business or lost the customer through someone's fault other than yours, such as through competitive bidding, then I think it will be really tough for them to prove there is any legitimate interest to protect in enforcing a noncompete agreement against you.

Remember, agreements that are for the sole purpose of preventing competition are illegal. They violate antitrust laws. Noncompete laws are an exception to antitrust laws. Your employer must show a legitimate interest to protect. Legitimate interests might be things like trade secrets, confidential information that's truly confidential and not available from public sources, and customer goodwill. If they can't show a legitimate interest other than preventing competition (or spite) then they should lose in court.

The problem is, most employees don't have the resources to fight if they're sued, and most new employers will just fire you if they get a nastygram from your former employer because they don't want to be in the middle of a lawsuit. I'm hoping that the Department of Justice and some state Attorney's General will start stepping up for the common man and enforcing antitrust laws against bullying employers.

In the meantime, you should contact an employment lawyer in your state about your rights.


If you have a question on noncompete agreements, discrimination, whistleblowing, employment contracts or any other employment law issue, and don't mind having me answer it publicly, feel free to ask it in the comments section. If you ask me here, you're asking for general information and not for legal advice. The question and answer will be public and will not be covered by attorney-client privilege, nor will it establish an attorney-client relationship. If you need legal advice or have an urgent legal issue that needs to be dealt with, contact an employment lawyer in your state.

Ask A Lawyer: How Can I Get Paid For Overtime?

How can you get paid for all the hours you worked? Whether it's getting paid vacation days or lunch breaks, lots of AOL Jobs readers have concerns about this issue, so I'm going to answer three readers' questions in this column. Please note: I'm giving general answers based on federal law. Your state may have laws with more stringent requirements for employers, so always check with an employment lawyer in your state about your specific situation.

Q: I work for a government agency and if we get any overtime, say on a Tuesday, we have to flex it in time off that week so that we don't get paid for it. The time we get off is straight time not time-and-a-half. They make us flex our time off if we work more than an eight-hour day. Is this legal?


For answers to this and other questions about wages, overtime and holiday pay, check out my new column in AOL Jobs.

Top Six Illegal Policies In Your Employee Handbook

Your employee handbook contains lots of policies and procedures you’re supposed to read and follow. But many handbooks contain policies the National Labor Relations Board (NLRB) considers illegal. NLRB is usually thought of as the agency that regulates all things union: elections, collective bargaining agreements, and unfair labor practices, to name a few. But I bet you didn’t know that they also probably regulate your employer unless you work for the government. That’s right: whether or not your workplace is unionized, the National Labor Relations Act (NLRA) applies to just about every private workplace.

Many employee handbooks contain policies that violate Section 7 of the NLRA, which says: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” NLRB has a new web page that describes its enforcement efforts regarding concerted activities of employees.

Here are just some of the policies NLRB considers to be illegal that may well be in your handbook:

At-Will Employment: Your handbook probably says your employment is at-will. But in a recent complaint the NLRB filed against Hyatt Hotels Corporation, the NLRB found that an acknowledgement in the handbook saying that the only way to change at-will employment was by a written statement signed by the employee and a Hyatt officer was so broad that it implied that unionization was futile. The provision is probably similar to your company’s at-will policy:

I understand my employment is "at will." This means I am free to separate my employment at any time, for any reason, and Hyatt has these same rights. Nothing in this handbook is intended to change my at-will employment status. I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt's Executive Vice-President/Chief Operating Officer or Hyatt's President.

In order to retain flexibility in its policies and procedures, I understand Hyatt, in its sole discretion, can change, modify or delete guidelines, rules, policies, practices and benefits in this handbook without prior notice at any time. The sole exception to this is the at-will status of my employment, which can only be changed in a writing signed by me and either Hyatt's Executive Vice President/Chief Operating Officer or Hyatt's President.

Arbitration: Many employers have policies requiring employees to arbitrate disputes with the company. However, if the company policy says you are waiving your right to a class action, or if it otherwise prohibits employees from filing a NLRB complaint, NLRB says it violates the law.

No Discussion of Wages: Employers try to prohibit employees from discussing and comparing their wages. But prohibiting discussion of wages violates the NLRA. Employees must be allowed to discuss working conditions, including wages. That’s a really important right if, for example, you think you’re a victim of discrimination.

Nondisparagement: Does your company say you aren’t allowed to say negative things about the company, whether online or otherwise? Again, this probably violates your right to discuss working conditions.

Confidential Information: Most companies have a policy that you must keep confidential information confidential. But if that prohibition keeps you from sharing personnel information, revenues, expenses or training materials, it may also violate your right to discuss working conditions.

Social Media: If the company social media policy says you aren’t allowed to discuss or disparage the company in social media, that may well violate your right to complain about working conditions with coworkers. There have been a slew of cases where NLRB has recently found illegal firings due to Facebook postings and other social media issues. Policies that prohibit “offensive,” “demeaning,” or “inappropriate” comments are likely overbroad. Some states have passed laws against demanding your social media passwords, and there's federal legislation pending as well that may protect you from this type of intrusion.

So what do you do if you think your employer’s policies violate the law?

Your first step is to contact your regional office of the National Labor Relations Board. If they believe your employer is violating the law, they can talk you through filing a Charge Against Employer.

You have 6 months from the event or conduct to file. That means if your company comes out with a new policy, or if you are required to sign a form acknowledging your receipt of the handbook or agreement to the policies, you have six months from that date. You are entitled to have an attorney represent you before NLRB but you can’t recover your attorney’s fees if you win.

NLRB will investigate, which means they will interview you and you’ll have to sign an affidavit. They’ll also interview your employer and any witnesses. Then they’ll decide whether or not to issue a complaint against your employer. If they do, NLRB acts on your behalf to proceed against your employer. They will also help try to settle the case.

Unfortunately, your only remedies are reinstatement with back pay and back benefits if you were fired, plus an injunction to prohibit your employer from breaking the law in the future. NLRB might also require your employer to put up a poster advising coworkers of their rights.

The National Labor Relations Act is an under-utilized law protecting employee rights. Your employer may not understand that it applies to them. If you’ve been fired for violating one of these illegal policies, you may have a remedy.

What the U.S. Chamber Of Commerce Doesn't Want You to Know About Your Workplace Rights

The National Labor Relations Board says almost all private employers must put up a poster informing you of your workplace rights under the National Labor Relations Act as of April 30, 2012. It’s free. Employers can download it online and print it out. So they all put up their posters, or are working on it now, right? Nosiree.

They sued. At least, they got together under the umbrella of the U.S. Chamber of Commerce to sue. They got a temporary injunction in the DC federal courts to stop the rule. They really, really don’t want you to see this poster. It must really be subversive, huh?

Well, see for yourself. Here’s exactly what the U.S. Chamber of Commerce doesn’t want you to know about your workplace rights:

Employee Rights Under the National Labor Relations Act

The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity. Employees covered by the NLRA are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA.


Contact the National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.

• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

Under the NLRA, it is illegal for your employer to:

• Prohibit you from talking about or soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.

Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:

• Threaten or coerce you in order to gain your support for the union.

Wow. That’s it, you say? What’s the BFD? Well, I think it’s mostly these provisions big employer doesn’t want you to see:

Discussing wages and benefits with coworkers: The poster says, “Under the NLRA, you have the right to discuss your wages and benefits and other terms and conditions of employment . . . with your co-workers or a union.” Yet many employers take desperate measures to make sure you don’t know what coworkers are making and what benefits they have. Some put out written policies or put restrictions in contracts. That’s flat-out illegal. If you have a contract or if your employer has a policy saying you can’t discuss wages and benefits with coworkers, you can file a Charge Against Employer with NLRB right now. The other part they don’t want you to know about here is your right to grouse about working conditions with coworkers. You can grumble and complain during breaks, on Facebook, in Twitter, as long as you’re doing it with coworkers and they can’t fire or discipline you for it.

Discussing work-related complaints and working conditions with coworkers: The poster says, “Under the NLRA, you have the right to take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.” If you complain about conditions on your own and on behalf of yourself, you aren’t protected. But you have the absolute right (assuming you aren’t a supervisor) to complain about working conditions on behalf of coworkers, to get together with coworkers to discuss and complain, and to get together to try to negotiate better working conditions. That is huge.

Employers like to crack down on employees who complain. They want to create an atmosphere where employees shut up and accept things as they are. Most of the time, it’s best to keep your mouth shut. But sometimes, you have to speak up. If working conditions are intolerable, if it feels like a prison, if you are being paid unfairly, if there’s a bully in the workplace, sometimes you have to speak up. You probably have the right to do so, as long as you aren’t a supervisor, and as long as you’re not alone.

Retaliation Against Whistleblowers - When Are You Protected?

While it may be satisfying to complain about your boss, the truth is, complaining can and will get you fired. While most people think we have free speech in this country, there’s no First Amendment in the private workplace. If you work for government, you do have free speech rights, but they are limited. Sassing your boss or saying she’s incompetent is not protected speech.

If the company is violating the law – Medicare fraud, ripping off the government, failing to pay taxes, failing to pay wages, discriminating, polluting, etc., there are a host of whistleblower laws that may protect you. You need to find out which law protects you and make sure you complain in a way that’s protected. Some laws require you complain in writing to a supervisor. Some say you have to report the company to a government agency. Some only require that you object to or refuse to participate in the illegal activity. If you get it wrong, you aren’t protected from retaliation.

Think about these questions to see if you might be a whistleblower. These are just some examples of activities that might be protected.

1. Have you recently objected to any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?

Under many whistleblower laws, but not all, your objection may have to be in writing. But an objection to a breach of the employer’s policies, or to an ethical violation, is generally not protected whistleblowing. While writing your long letter venting about every way the workplace is unprofessional may be satisfying, it can get you fired.

The objection most likely has to be to an activity, policy or practice of the employer. If you object to a coworker stealing from the company, it’s probably not protected. What would be protected is objection to failure to pay overtime, discrimination based on a protected category (race, age, sex, religion, national origin, marital status, disability, color and, in a couple of counties, sexual orientation), safety violations governed by OSHA, or almost any other legal violation. Statutes, government regulations, and county/city ordinances would fall in this category.

Even if the objection doesn’t need to be in writing, I suggest you put it in writing so the employer can’t deny you made the objection later.

2. Have you recently refused to participate in any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?

If the employer asks you to do something actually illegal, whistleblower laws applying to your industry may say you can refuse and you are protected. But I still suggest you put your refusal in writing.

3. Have you recently disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation?

You may be protected if you have, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and have given the employer a reasonable opportunity to correct the activity, policy, or practice. Examples would be making a formal written complaint of discrimination based on, say, sex. The formal complaint would say that, if the situation is not promptly resolved, you intend to file a charge of discrimination with EEOC. Then you could invoke this provision after giving them time to fix the situation.

4. Have you recently provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer?

If you give information to the police, unemployment, EEOC, OSHA, a legislative body, or other entity actually doing an investigation of an illegal practice, you may well be a protected whistleblower.

The Whistleblower Laws

The remedies, requirements, and administrative hoops are the subject of entire treatises, so I’ll just draw your attention to some of the major whistleblower laws.

The federal whistleblower laws are:

The OSHA –enforced laws govern protection of workers against retaliation for complaining to employers, unions or the Occupational Safety and Health Administration (OSHA), or other government agencies about unsafe or unhealthful conditions in the workplace, the environment, some public safety hazards, some securities fraud violations.

OSHA enforces these anti-retaliation laws:

Occupational Safety & Health Act (OSH Act), 29 USC § 660(c)
Surface Transportation Assistance Act (STAA), 49 USC § 31105
Asbestos Hazard Emergency Response Act (AHERA), 15 USC § 2651
International Safety Container Act (ISCA), 46 USC App. § 1506
Energy Reorganization Act of 1974 (ERA), 42 USC § 5851
Clean Air Act (CAA), 42 USC § 7622
Safe Drinking Water Act (SDWA), 42 USC § 300j-9(i)
Federal Water Pollution Control Act (FWPCA), 33 USC § 1367
Toxic Substances Control Act (TSCA), 15 USC § 2622
Solid Waste Disposal Act (SWDA), 42 USC § 6971
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 USC § 9610
Wendell H. Ford Aviation Investment and Reform Act (AIR21), 49 USC § 42121
Sarbanes-Oxley Act (SOX), 18 USC § 1514A
Pipeline Safety Improvement Act (PSIA), 49 USC § 60129
Federal Railroad Safety Act (FRSA), 49 USC § 20109
National Transit Systems Security Act (NTSSA), 6 U.S.C. §1142
Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. §2
Affordable Care Act (ACA), P.L. 111-148


Sarbanes-Oxley is the most famous OSHA-enforced whistleblower law. It protects employees of publicly-traded corporations from retaliation for reporting violations of SEC rules and federal laws regarding fraud against shareholders.

The Whistleblower Protection Act protects Federal employee whistleblowers.

Military Whistleblower Protection Act protects whistleblowers in the U.S. military

False Claims Act (FCA), which enables a private citizen to file a lawsuit in on behalf of the U.S. Government for fraud by contractors and other businesses that use federal funds. Qui Tam prohibits an employer from retaliating against an employee for attempting to report fraud against Medicare, Medicaid, FDA, GSA, HUD, USDA, U.S. Postal Service, NIH and the military, but not the IRS.

States that have whistleblower protection laws for most employees, government or private, are: Arizona, California, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, Ohio, Oregon, Rhode Island, and Tennessee.*

States that offer whistleblower protection to government, but not private employees are: Alabama, Alaska, Colorado, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Missouri, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, West Virginia, Washington, and Wisconsin.*

*State laws change all the time, as do federal laws. Talk to a lawyer in your state or do your research to make sure you're jumping through all the right hoops to be protected.

Other Types Of Retaliation

Here are some examples of other types of complaints where the law protects you from retaliation.

Discrimination: If you are the victim of discrimination or harassment based upon your race, age, sex, religion, national origin, color, disability, genetic information, association with a person in one of these categories, or another category that’s protected in your state/county/city (e.g., marital status or sexual orientation that aren’t protected by federal law), then you have to follow your employer’s published discrimination/harassment policy and report it.

Wage/overtime violations: If you’re terminated for objecting to failure to pay wages owed or failure to pay overtime, you may be protected from retaliation under the Fair Labor Standards Act or your state’s wage/hour laws.

Collective action to improve working conditions: The National Labor Relations Act protects employees from being retaliated against if they get together to try to improve the terms and conditions of their employment. So those letters employees sometimes do to complain against unfair treatment or bullying are supposed to be protected. The only problem is that many employers and management-side lawyers think this only applies to unionized workplaces (they’re wrong) and so they usually don’t hesitate to retaliate. Awareness was raised recently because the NLRB went after a company when it disciplined an employee for posting negative comments about a supervisor on Facebook and other coworkers chimed in. We’ll see how this case shakes out and whether it’s ultimately deemed a protected collective action. In the meantime, I’d avoid saying your boss is a jerk on Facebook or Twitter. Your remedies under this law aren’t the easiest to get or the best, but it’s something to hang your hat on and wave in front of the boss if they start threatening retaliation.

Deadlines/Statutes of Limitations

If you’ve been retaliated against, you may have short deadlines for bringing your complaint, and there may be some requirements you have to meet before you can sue. Here are some examples.

Sarbanes-Oxley: You must file a complaint with the U.S. Department of Labor within 90 days of the date you found out about the whistleblower discrimination, harassment or retaliation.

Other whistleblower claims: Statutes of limitations can be as short as 30 days for some whistleblowers protected under federal laws (e.g., environmental whistleblowers). State whistleblower laws vary, so be sure you know your deadlines.

Qui tam: Within the later of 6 years from the date of the violation; or
3 years after the government (or sometimes you) knows or should have known about the violation, but never longer than 10 years after the violation.


Donna’s tips:

a. If you’re going to complain about legal wrongdoing or discrimination, I suggest putting it in writing even if the employer’s policy says to have a meeting. You can present the written document at the meeting. That way you have proof that you complained about something that’s protected. Otherwise, HR will almost always say you complained about general harassment or unfair treatment, which isn’t protected.

b. If you complain, keep it professional and to the point. Avoid complaining about personality conflicts or incompetence. Stick to the facts that prove what’s happening is illegal.

c. HR is entitled to investigate your complaint. That means even if they have a policy of keeping your complaint confidential, your boss, the person you’re complaining about, and your witnesses and other coworkers will probably find out about it. Be prepared for that to happen, and be ready to report retaliation.

d. If you are retaliated against for reporting something illegal, put your complaint of retaliation in writing. If the retaliation doesn’t stop, or if you get fired, disciplined, demoted, or a pay cut as a result, contact an employment attorney.

e. If, after you complain, the situation is not fixed, contact an employment attorney for advice. But they don’t have to fire anyone or take any specific action, so don’t threaten to quit if they don’t fire the perpetrator.

f. If you’re complaining about a boss or coworker embezzling, stealing, or doing something TO the company, as opposed to on behalf of the company, you’re probably not protected from retaliation. You’d be surprised how many people get fired for reporting someone ripping off the company. Silly, yes, but there you have it. Killing the messenger is alive and well.

Why Do I Need An Employment Lawyer? Do I have A Case?

In general, there is no such thing as wrongful termination/discipline in most states if you don’t have a contract saying you can only be fired for cause. So why on earth would you ever need an employment lawyer? How do you figure out if you have a case?

Why Do I Need An Employment Lawyer?

There are some times in your employment that you may definitely need an attorney. Here are some reasons you might need a lawyer.

Deadlines: Employment laws are a morass of confusing deadlines, prerequisites to filing suit, and requirements you might miss if you try to do it yourself. If you’re thinking about filing suit, you probably want to speak to a lawyer.

Confusing claims: There are some employment laws on the books that you might not know about, so you might have a case you don’t know about. And there are some laws you think exist, that don’t. If you think you might have claims, if your termination doesn’t feel right or you think something has happened that’s illegal, you might want to run it past a lawyer.

Being taken seriously: Some employers don’t take you seriously unless you have representation.

Uncomfortable in confrontations: If you’re trying to negotiate your own employment agreement or severance package, many people don’t feel comfortable being in a confrontational situation or advocating for themselves. Sometimes it’s better to have an advocate.

When you absolutely, positively need a lawyer

If any of these happen to you, you should contact a lawyer immediately:

Your employer or former lawyer sues or threatens to sue you;

You’re being asked to sign an agreement that you don’t fully understand, especially if it’s a noncompete, confidentiality, arbitration, or employment agreement;

You’ve been accused of a crime (contact a criminal defense lawyer, not an employment lawyer, immediately).

When you might want a lawyer

If you think your employer or former employer has broken employment laws;

If you have been retaliated against for complaining about discrimination or something illegal the employer has done;

If you’re not being paid all the wages you’re owed;

If you think you’re misclassified as exempt from overtime or as an independent contractor.

When you probably don’t need a lawyer

To make a written complaint of discrimination to the human resources department, as long as you follow the policy;

To attend a disciplinary meeting (take good notes, don’t sign anything except a form acknowledging receipt of the discipline, and sign “as to receipt only, rebuttal to follow);

To sign documents you understand, like applications, insurance forms, and tax documents.

To file a union grievance if you’re a union member (use your union rep – they’re free).

Do I Have A Case?

Here is a checklist to help you figure out if you might have a case against your employer. It’s not exhaustive, since every state has different laws, but this will give you a start.

Cases involving termination, demotion, or suspension without pay

If you answer yes to any of these questions, you may have potential claims. You’ll want to contact an employment lawyer in your state to find out if you have a case if any of these occurred shortly before your termination, demotion, suspension without pay or other discipline.

_____ Did you make a worker’s compensation claim shortly before being fired?

_____ Had you recently objected to, refused to participate in, or reported illegal activity or discrimination by the company? (as opposed to something unethical or a violation of company policy)

_____ Had you recently had surgery, revealed the existence of a medical condition, genetic information or pregnancy?

_____ Has the employer made a false statement of fact (as opposed to opinion) about you to someone outside the company, such as a potential employer?

_____ Had you recently performed jury duty?

_____ Had you recently served in the military?

_____ Had you recently taken family or medical leave?

_____ Had you recently served as a witness in a lawsuit or provided testimony or evidence to EEOC?

_____ Had you recently engaged in activity for the benefit of co-workers with respect to terms and conditions of employment?

_____ Did your employer fail to pay you for all hours worked, or fail to pay overtime if you worked over 40 hours per week? Many times, employees are misclassified as exempt and will be owed back wages for up to 2 - 3 years.

Discrimination claims

It’s not illegal to discriminate against you for being you. If the discrimination or harassment fits in one of the categories below, you should contact an attorney or EEOC to find out more about your rights and your responsibility to report it before you make a claim.

___ Race ___ Sex ___ Sexual harassment ___ Religion ___ Ethnicity ____ Disability ____ Age___ Pregnancy ____ National origin ____ Color (same race) ___ Genetic information ____ Retaliation for objecting to discrimination

Ask yourself how you were treated differently than others of a different race, age, sex, national origin, disability, religion, sexual orientation, or color under the same circumstances. Some states, counties or municipalities have more categories, like marital status and sexual orientation. If you can’t point to someone else who was treated differently under the same circumstances, or to instances where you were singled out for different treatment than others, you may not be able to show discrimination.

Does the employer have 15 or more employees? If not, discrimination laws may well not apply. Some states, counties and municipalities have laws that apply to smaller employers.

Why Isn’t My Case On Your List?

Many people are quite certain that some employer actions are illegal, based on bad TV dramas and misconceptions. Here are some examples of things that aren’t illegal, even though you might assume they are:

• Breaks

No federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it’s not a majority.

• Hostile environment/harassment

Hostile work environment is not illegal. General harassment is not illegal. Bullying is not illegal. Only hostile environment/harassment due to race, age, sex, disability, or another legally-protected status is illegal.

• Free speech
Only government employees have free speech protections, and those are very limited.

• Privacy
There is no law giving you privacy in your work emails or internet usage. If your employer is going to listen into or record phone calls, there are legal restrictions. You have some privacy rights in your medical information. There is no federal law protecting your social security number, but two states offer limited protection against employers displaying your number.

• Right to work

Right to work doesn’t mean your employer can’t make you sign a non-compete agreement or restrict your ability to work for competitors after you leave. What it means is they can’t make you join a union in order to work there. Some states, but not all, are right to work states. If your company tells you that signing a non-compete agreement is meaningless or that it won’t be enforced, they are lying to you.

• Retaliation

There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, lack of professionalism, ethical violations, bullying, or jerkish behavior.

If you think you have claims to make against your employer or former employer, then the best course of action is to contact an employment lawyer in your state to discuss potential claims.