Author: Cromer Babb

WHAT DOES EMPLOYMENT AT WILL MEAN AND WHEN CAN I CHALLENGE MY TERMINATION IN COURT?

By: Jake Modla, Esq.

“AT WILL” EMPLOYMENT DEFINED

In South Carolina and North Carolina, the relationship between an employee and his employer is “at-will”. “At-will” employment means an employer is free to terminate an employee at any time for any reason, including a good reason, a bad reason, or no reason. The only exception is that an employee cannot be fired for an illegal reason. “At-will” employment also means an employer can change the terms of the employment relationship with no notice and no consequences. For example, the employer can reduce your pay, change your scheduled work time or shift, or reduce the amount of vacation time offered.

EXCEPTIONS TO “AT WILL” EMPLOYMENT

1. Employees with employment contracts: The “at-will” employment relationship can be modified when a contract of employment is entered into between the employee and his employer. Employment contracts can provide for a specific length or term of employment, for example a two-year employment period; or the employment contract may only allow for termination of the employee for “cause”. “Cause” typically includes reasons such as poor performance, employee misconduct, or economic struggles of the employer. If an employer terminates an employee in violation of one of the provisions of the employment contract, the employee can challenge the termination in a breach of contract lawsuit.

2. Termination in violation of public policy: Some “at-will” employees who are terminated can challenge their employer’s decision if the reason for the termination violated public policy. Terminations that violate public policy include: 1) an employee terminated for refusing their employers order or directive to do something that violates state law, for example an employers request that an employee lie to an OSHA inspector; 2) an employee terminated for reporting a violation of the law by their employer, for example reporting an employers fraudulent sales practices or use of child labor; or 3) exercising a statutory right, for example filing a claim under the state worker’s compensation laws.

3. Illegal Discrimination: Federal and state discrimination statutes prohibit employers from making termination decisions based on an employee’s race, color, religion, sex, pregnancy, national origin, age, disability, or veteran status. These laws protect workers from being terminated because of their membership in these protected classes. In other words, Pete’s boss can fire him because he failed to follow safety rules in the manufacturing plant, but Pete’s boss cannot fire him because he is African American.          

4. Retaliation: Retaliation is another statute-based exception to “at-will” employment. Federal and state law protect employees who are fired in retaliation for engaging in protected activities. Protected activities include being a witness or testifying on behalf of another employee in their discrimination lawsuit, reporting minimum wage or overtime pay violations, engaging in union activities, or engaging in concerted activities- two or more employees going to management and complain about working conditions.

The employment lawyers with Cromer Babb & Porter are available in South Carolina and North Carolina to help you review the facts of your termination and determine if you can sue your employer for an illegal termination.

Understanding Your Rights: The Age Discrimination in Employment Act and the Older Workers Benefit Protection Act

By: Chance Sturup

In today’s rapidly evolving job market, understanding your rights as an employee is crucial, especially as you navigate the latter stages of your career. For many older workers, concerns about age discrimination and fair treatment in the workplace can loom large. Fortunately, there are federal laws in place designed to protect workers aged 40 and above: the Age Discrimination in Employment Act (ADEA) and the Older Workers Benefit Protection Act (OWBPA).

The Age Discrimination in Employment Act (ADEA)

The ADEA, enacted in 1967, was a landmark piece of legislation aimed at promoting the employment of older persons based on their ability rather than age. Its primary objective is to protect workers aged 40 and older from age-based discrimination in all aspects of employment, including hiring, firing, promotions, compensation, and job assignments.

One of the key provisions of the ADEA is that it prohibits discrimination in job advertisements, recruitment, and hiring practices. Employers are not allowed to specify age preferences or limitations unless age is a bona fide occupational qualification (BFOQ) for the job. For instance, a job ad seeking a model for a retirement community may specify an age range, but such cases are rare and strictly regulated.

Moreover, the ADEA makes it unlawful for employers to retaliate against employees who file age discrimination complaints or participate in investigations or proceedings related to age discrimination.

The Older Workers Benefit Protection Act (OWBPA)

The OWBPA, passed in 1990 as an amendment to the ADEA, focuses specifically on protecting the rights of older workers regarding employee benefits. It ensures that older workers are not unfairly targeted when it comes to employee benefit plans, such as health insurance, retirement plans, and severance packages.

Under the OWBPA, employers must provide certain protections for older workers when offering severance agreements or early retirement incentives. These protections include:

  1. Knowing and Voluntary Consent: Employers must provide clear and understandable information about any benefits being offered and the rights that the employee is waiving by accepting the agreement. The employee must have at least 21 days to consider the offer and seven days to revoke their acceptance after signing.
  2. Information about Comparable Employees: Employers must provide information about the job titles and ages of employees who are eligible or selected for the program, as well as those who are not.
  3. Equal Access to Benefits: Older workers must be offered benefits that are comparable to those offered to younger workers in similar circumstances.

Your Rights and Responsibilities

As an older worker, it’s essential to be aware of your rights under the ADEA and OWBPA and to take action if you believe those rights have been violated. If you suspect age discrimination or unfair treatment in the workplace, there are steps you can take:

  1. Document Everything: Keep detailed records of any incidents or interactions that you believe may constitute age discrimination. This documentation can be crucial if you decide to file a complaint or take legal action.
  2. Speak Up: If you feel comfortable doing so, consider addressing your concerns directly with your employer or human resources department. Sometimes, issues can be resolved through open communication and mediation.
  3. File a Complaint: If informal measures fail to resolve the situation, you have the right to file a formal complaint with the Equal Employment Opportunity Commission (EEOC) or your state’s fair employment practices agency.
  4. Seek Legal Advice: If you’re unsure about your rights or how to proceed, consider consulting with an experienced employment attorney, like those at Cromer Babb & Porter, who can provide guidance tailored to your situation.

Ultimately, the ADEA and OWBPA provide important protections for older workers in the United States, safeguarding against age discrimination and ensuring fair treatment in the workplace. At Cromer Babb & Porter, we seek to ensure that older workers understand their rights, and we hold employers accountable for their responsibilities to older workers under these laws.

Empowering You Through Exceptional Client Service: Our Commitment to Your Justice

By: Kate Benoit, MBA

At Cromer Babb & Porter, we understand the profound impact that workplace injustices can have on your life. Whether you’ve faced discrimination, harassment, wrongful termination, or any other form of mistreatment, we recognize the emotional toll and the challenges you’re up against. As the firm’s Chief Operating Officer, I am proud to reaffirm our unwavering commitment to providing you with top-notch client service and legal representation that goes above and beyond to achieve justice on your behalf.

Putting Clients First: Our Core Principle

From the moment you walk through our doors or reach out to us for assistance, you become the focal point of everything we do. We firmly believe that every client deserves to be treated with dignity, respect, and compassion. Your concerns are our concerns, and your goals become our mission.

Tailored Legal Solutions: Your Voice, Your Rights

No two employment cases are alike, and we recognize the importance of crafting personalized legal strategies that align with your unique circumstances and objectives. Our team of dedicated attorneys takes the time to listen attentively to your story, understand your needs, and provide you with comprehensive legal guidance every step of the way.

Transparent Communication: Keeping You Informed

We understand that navigating the legal process can be overwhelming, which is why we prioritize transparent communication. From explaining complex legal concepts in plain language to providing regular updates on case developments, we strive to keep you informed and empowered to make decisions about your case.

Accessible and Responsive: Your Advocate Whenever You Need Us

Your peace of mind matters to us, which is why we make ourselves readily accessible to address your questions, concerns, and needs. Whether you prefer to communicate via phone, email, or in-person meetings, our team of attorneys and paralegals is here to provide you with the support and guidance you need.

Going the Extra Mile: Going Beyond Legal Representation

At CBP, we understand that achieving justice extends beyond legal victories—it’s about restoring your sense of dignity and confidence. That’s why we go the extra mile to provide holistic support throughout your journey, connecting you with resources, support networks, and advocacy organizations to help you rebuild and move forward with your life.

Your Satisfaction is Our Priority

Client satisfaction isn’t just a goal; it’s our guiding principle. We measure our success not only by the legal outcomes we achieve but also by the trust, satisfaction, and peace of mind we bring to every one of our clients. Your satisfaction isn’t just important to us—it’s paramount.

Contact Us to Stand Up for You

If you’ve been wrongfully treated in the workplace, you don’t have to face it alone—contact us at CBP. Together, we’ll stand up for your rights, advocate for your voice to be heard, and work tirelessly to secure the fair and just resolution you deserve.

Remember, you are not alone. We are here to stand by your side and fight for your rights every step of the way.

Kate Benoit, MBA, Chief Operating Officer

Non-Compete Agreements in South Carolina

By: Attorney Nicholas Quatraro

            Employees in South Carolina often face non-compete agreements in employment contracts. A non-compete agreement is a restrictive covenant that is sometimes included in employment contracts. This restricts an employee from working for a business or starting a business that does the same kind of work as the previous employer. Non-compete agreements are typically enforceable whether the employee voluntarily resigns, or they are fired by their employer.

            The South Carolina Court of Appeals has held that a non-compete agreement is enforceable only if it is (1) supported by valuable consideration; (2) necessary to protect the employer in some legitimate interest; (3) not unduly harsh and oppressive in curtailing the employee’s legitimate efforts to earn a livelihood; and (4) otherwise reasonable from the standpoint of sound public policy.  Baugh v. Columbia Heart Clinic, P.A., 402 S.C. 1, 738 S.E.2d 480 (Ct. App. 2013). The noncompete agreement must also be reasonable in geographic scope, duration in time, and type of work restricted.

            A non-compete agreement that has a duration of one to two years, and includes a certain mile radius, or county radius may be reasonable, whereas a non-compete agreement that has a duration of ten years and includes a state-wide restriction may not be reasonable.*

            Each non-compete agreement is different, and the determination of enforceability is extremely fact specific. I recommend reaching out to an attorney that practices in the area of employment law to review employment contracts and non-compete provisions prior to signing.

            As J. Paul Porter has written in a previous blog post (https://cromerbabb.com/latest-news/), the Federal Trade Commission (“FTC”) proposed a rule that would ban most non-compete agreements in the United States. The proposed rule is not binding at this moment. The FTC is expected to vote on its final rule in April 2024. In the meantime, South Carolina courts will continue to allow non-compete agreements for South Carolinians across the state.

The employment lawyers with Cromer Babb & Porter are available in South Carolina and North Carolina to review noncompete agreements, and to fight for employees who may have entered into an unenforceable non-compete agreement. 

*Disclaimer: No one factor may render a non-compete agreement enforceable or unenforceable. It is best to speak with an attorney regarding the nature of the agreement.

7 Tips for When Your Job is at Risk

By: Attorney J. Paul Porter

When the walls are closing in at work, it’s hard to think clearly.

I have encountered thousands of different real life termination scenarios and other difficult employment issues where I’ve used my knowledge of employment law to advise people about whether they have a case.

Sometimes, employees are proactive, and they see me before a termination or other adverse employment action happens. I love this because I can help the employee try to avoid, delay, or manage the adverse employment action, saving them money and heartache. When this happens, a lot of the advice I give is practical advice (rather than legal advice), based on my experience of seeing thousands of workplace scenarios play out.

These are some of the practical tips I give:


1. Don’t mess up! This is really hard when your employer has you under microscope. I get it. But the best defense in an employment setting is a really, REALLY good defense. You need to do your job to the best of your ability and be polite, professional, and cool as a cucumber. Don’t give your employer an easy excuse to take action. Some employment law claims require you to show that you were meeting expectations at the time of an adverse employment action. Be the best employee you can be.


2. Keep good records. Keep organized records. If you can do so without violating any of your employer’s rules, keep copies of your performance evaluations, any disciplinary actions, and critical emails and text messages relating to your situation at work. Consider keeping a personal journal or log about occurrences at work. Be mindful that you may have to share a copy of any log/journal with your employer if you pursue a lawsuit.


3. Create a paper trail. On the big stuff, communicate via email. The big stuff includes: (1) complaints to HR about discrimination or harassment, (2) requests for disability accommodation or medical leave, and (3) anything else where common sense tells you a written record would keep all parties accountable. Reserve this for the big stuff. Several emails about relatively small slights, make the big stuff look trivial (don’t cry wolf!) You can document the small slights in your journal.


4. Consult your handbook/harassment or grievance policy. A well-written handbook is going to have an internal complaint process that you need to follow. Not because your employer will actually do anything about your report (that policy is there to CY their A (not yours!) but there is case law that says, failure to follow the internal complaint policy could make establishing certain claims harder later on.


5. Be explicit. If you think you are encountering discrimination based on your race, sex, or creed, then say so! If you need disability accommodation, say what your disability is. If your employer does not know you are complaining about discrimination or asking for help with a disability, then rules about retaliation or engaging in an interactive process to accommodate a disability are not in play. In the context of disability accommodations and medical leave, it’s crucial that you work with your employer, provide them the documentation they ask for, and do everything you can to make it apparent that you can and should be accommodated. The employer may make this difficult and may make you jump through hoops, but you have to show a good faith effort on your part to cooperate.


6. Look for an Exit. A fulfilling (and paying) career is better than a lawsuit. Clean up your resume. Call headhunters. Apply elsewhere (or internally for transfer). If a good opportunity presents itself, leave a bad situation. Self-help is cheaper than I am. (Be mindful of noncompete and other restrictive covenant agreements before you jump to greener pastures).


7. See a lawyer. Consult with an employment lawyer who will give you direct advice on what rights you have (if any) and will tell you what they think you should or should not do. Knowledge about your rights (or even lack of rights) reduces your anxiety about the unknown. This will cost you a fee (we lawyers have to get paid too), but it’s worth it. Having an objective third party, with particular legal knowledge, tell you what they would do in your shoes can be a big help in averting, delaying, or managing a bad employment situation. A prudent employee seeks legal advice at the beginning of a difficult employment situation.

Disclaimer! I literally don’t know who you are, Mr., Mrs., or Ms. reading subscriber to the internet. Every situation is different. This is big picture advice. Call my office and pay me if you want individualized advice. You’ve are currently being warned (by this sentence) that steps 1-6 will vary depending on your particular situation. Step 7 is the remedy.

Accommodating Diversity: Navigating Requests for Accommodations Under the Americans with Disabilities Act

-Written by Attorney Beth Bowen

The Americans with Disabilities Act (ADA) stands as a beacon of progress, ensuring that individuals with disabilities have equal opportunities in employment. Enacted in 1990, the ADA prohibits discrimination against individuals with disabilities in various aspects of public life, including employment. The ADA applies to employers with 15 or more employees, including state and local government. One of its key provisions mandates employers to provide reasonable accommodations to qualified individuals with disabilities, ensuring they can perform essential job functions.

Who Can Request Accommodations?

The ADA defines a person with a disability as someone with a physical or mental impairment that substantially limits one or more major life activities, a person with a record of such an impairment, or a person perceived as having such an impairment. This broad definition encompasses a wide range of conditions, from mobility impairments to chronic health conditions and mental health disorders.

The Accommodation Process:

Requesting accommodations under the ADA is a collaborative process between the individual and their employer. It begins with the individual making a request, preferably in writing, and providing relevant documentation of their disability and the need for accommodation. Employers are then required to engage in an interactive process to determine the appropriate accommodations, considering factors such as the nature of the disability, the essential job functions, and the workplace environment.

Types of Accommodations:

Accommodations under the ADA can take various forms, depending on the individual’s needs and the nature of their job. Examples include modifying work schedules, providing assistive technology or adaptive equipment, restructuring job duties, altering workplace facilities, providing intermittent or extended leave, and offering telework options where providing such accommodations would not create an undue hardship on the employer. The goal is to remove barriers to employment and enable individuals with disabilities to perform their job duties effectively.

Legal Protections and Employer Responsibilities:

Employers have a legal obligation to provide reasonable accommodations, unless doing so would impose undue hardship on the business. Employers cannot discriminate against employees or applicants based on their disability status or their request for accommodation. Additionally, the ADA prohibits retaliation against individuals for requesting accommodations or asserting their rights under the law.

Best Practices for Employees seeking Accommodations under the ADA:

  1. Review your employer’s policies regarding requests for accommodations to ensure you are following policy while requesting accommodations
  2. Request an accommodation in writing with supporting documentation from your healthcare provider(s)
  3. Consult an employment attorney for advice specific to your disability and requests for accommodations

Best Practices for Employers:

To foster an inclusive workplace culture and comply with the ADA, employers should proactively educate managers and employees about accommodation procedures and disability awareness. Establishing clear policies and procedures for handling accommodation requests, training staff on the importance of inclusion, and creating a supportive environment where individuals feel comfortable requesting accommodations are essential steps toward compliance.

Conclusion:

Requests for accommodations under the ADA are not just legal obligations; they are opportunities to promote diversity, equity, and inclusion in the workplace. By embracing the principles of the ADA and proactively supporting individuals with disabilities, we can create environments where everyone can thrive professionally, regardless of their abilities.

The Basics of Qui Tam / False Claim Act Whistleblower Claims by Jay Babb

Introduction

Qui Tam claims are a powerful mechanism under the False Claims Act (FCA) that empowers private individuals to expose and combat fraudulent activities that harm government finances. Qui Tam is short for a Latin phrase, “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which roughly translates to “he who sues on behalf of the king as well as for himself.” In essence, a Qui Tam claim is a legal action initiated by a private individual, often called a relator or whistleblower, on behalf of the government. These claims typically relate to cases of fraud against the government, especially in the context of government contracts, programs, or benefits.

Understanding Qui Tam Claims

Qui Tam claims are legal actions initiated by whistleblowers possessing insider knowledge of fraud against the government. These fraudulent activities often involve government funds, contracts, programs, or benefits. Here are a few basics regarding Qui Tam claims:

1. Gather Concrete Evidence: The first step is to collect compelling evidence that supports the allegations of fraud. This can include documents, emails, financial records, or any other tangible proof that strengthens your case.

2. Act Quickly and Do Not Talk to Others About the Case: The law rewards the first person to file a complaint of unknown fraud. There are restrictions under qui tam laws that prevent more than one whistleblower being awarded for reporting fraud and prevent qui tam lawsuits based on certain public information.

3. Consult an Experienced Attorney: It’s important to seek an attorney experienced with Qui Tam cases. They can provide valuable insights, assess the strength of your case, and guide you through the intricate process.

4. Prepare the Formal Complaint: Work closely with your attorney to draft a comprehensive formal complaint. This document should outline the specifics of the fraud, including details about the parties involved and the relevant laws or regulations that have been violated.

5. Filing the Lawsuit: Your attorney takes the lead in filing the complaint in a federal court. Importantly, this complaint is filed under seal, ensuring that it remains confidential during the initial stages of the investigation.

6. Government Investigation: Once the lawsuit is filed, the conducts a thorough investigation into the allegations, which may include interviews, document reviews, and the collection of evidence. Throughout the investigation and subsequent legal proceedings, it’s crucial to cooperate fully with the government. Your continued assistance is essential in building a robust case against the wrongdoers.

7. Government Intervention: If the government’s investigation uncovers substantial evidence of fraud, they may decide to intervene in the lawsuit. This means that the government takes over the case while the whistleblower and their attorney remain actively involved in the process. Even if the government does not choose to intervene, the whistleblower has the option of pursuing the qui tam case on their own.

8. Possible Settlement or Trial: Depending on the strength of the case, it may lead to a settlement between the government and the defendant or proceed to trial. Most successful qui tam claims are resolved through settlement negotiations, although trials do occur. Your attorney will work diligently to advocate for your interests throughout this phase, ensuring that justice is served.

9. Whistleblower Rewards: One of the key incentives for filing a Qui Tam claim is the potential for a financial reward. If the lawsuit is successful, you, as the whistleblower, may be entitled to a portion of the funds recovered by the government. Those found liable under the False Claims Act may have to pay as much as three times the government’s losses plus penalties for each false claim. This financial incentive encourages individuals to step forward and report fraudulent activities.

10. Whistleblowers are Protected: The False Claims Act prohibits retaliation against employees, contractors or agents for filing a qui tam action or for attempting to stop or report violations of the False Claim Act. Any such whistleblower who suffers retaliation may sue for reinstatement and other damages where appropriate.

Conclusion

Filing a Qui Tam claim is undoubtedly a complex and multi-faceted process. However, it plays a crucial role in combating fraud that costs taxpayers billions of dollars each year. Whistleblowers who bring these claims forward not only protect the public interest but also have the opportunity to benefit from their actions.

If you find yourself in possession of information about fraudulent activities against the government, please give us a call to see if we can help.

The NLRA Applies to Non-Union Employees, too!

I have seen an uptick in consultations with employees who have viable claims under the National Labor Relations Act (NLRA). Employees covered by the NLRA are afforded certain rights to join together to improve their wages and working conditions, with or without a union. This protection extends to certain work-related conversations conducted on social media.

Here is a hypothetical that depicts a NLRA claim. Jane Doe is employed by ABC manufacturer. Jane is not a union member. Jane is a line worker, and she works the first shift. The first shift includes 20 other line workers. Jane heard that the employees on second shift all got a $1 per hour pay raise starting January 1, 2024. The second shift employees were told to keep the raise secret and not tell any other employees. Nonetheless, someone leaked the pay change for the second shift line workers. Jane asked her favorite coworker on the second shift, Joe Smith, if the pay raise rumor was true. Joe affirmed to Jane that indeed received a $1 per hour pay raise starting January 1, 2024. Jane believes this pay change to be unfair.

Jane ruminated over the implications of complaining about the unfairness of the second shift getting a pay raise. Jane had a disrupted night of sleep about it. Jane decided that she needed to make a formal complaint. Jane went to the Human Resources (HR) Department on January 3, 2024, and submitted a complaint to a HR Representative. Jane reported that all of the line workers on the first shift should also receive a $1 per hour pay raise. The HR representative was dismissive, and she told Jane that she had a lot of urgent new year deadlines to deal with before she had time to talk to Jane. As Jane was leaving the HR office, Jane saw the HR representative toss her complaint on a stack of papers on the ground.

Jane felt ignored. Jane worked the rest of her shift on January 3, 2024. Jane ate dinner at home, and she called her work bestie to complain about the unfairness of it all. Then, Jane posted on Facebook, “I have worked for ABC for 10 years. Everyone should know how ABC’s treats their employees. They give some people raises and do not give my whole shift raises even though we are the ones that have to wake up early every day. Management does not know what they are doing. Pay everyone fairly!” Jane’s Facebook post quickly received likes and comments.

The next morning, Jane went to work on January 4, 2024, and despite her frustrations over her pay, she even gets to work early. Jane is the first line worker at the timeclock. As soon as Jane clocks in Jane’s Manager, Dick Charles, calls her to the management office. Dick says, “I saw your Facebook post. Your conduct is unacceptable. What do you have to say for yourself?” Jane responds, “I reported the pay concerns for first shift to HR yesterday and she pretty much threw my complaint away. First shift should get $1 per hour raises. Why are you being such a jerk not giving us one too!?” Dick responds, “Do you see my name on that door!? I decide who gets a raise, not you! Get out and don’t come back!” Jane is escorted out of the building and barred from the premises.

Jane calls her friend to vent about her termination. The friend tells her to call Cromer Babb & Porter, LLC (CBP) because they helped her friend in an employment case a couple of years ago. Jane calls CBP and schedules a consultation with me. I listen to Jane’s woes and then I tell Jane what legal issues I see in her case.

Jane has a case against ABC manufacturer. I tell Jane that her claims arise under the NLRA. The National Labor Relations Board (NLRB) enforces the NLRA. Jane must file a Charge with the NLRB within six months of the occurrence. Jane should always measure her filing deadline from the earliest dates of concern. From what is described above, it is best for Jane to file a Charge within six months of January 1, 2024.

We represent employees with NLRA claims. If you, or someone you know, has issues like Jane, we are here to help.  

By: Attorney Shannon Polvi

Unwrapping the Fair Labor Standards Act: Does Santa Make the Nice List?

The holiday season is coming to a close, and while we’ve been busy decorating trees, sipping cocoa, and wrapping gifts, did you ever wonder about the workforce behind the magic of Christmas? That’s right – Santa’s elves. Putting aside the issue of jurisdiction over the North Pole, let’s unwrap the Fair Labor Standards Act (FLSA) and see how it might apply to those cheerful, industrious little beings up in the North Pole.

The Fair Labor Standards Act, enacted in 1938, serves as a cornerstone of labor law in the United States. Aimed at establishing minimum wage, overtime pay eligibility, recordkeeping, and child labor standards, the FLSA strives to protect the rights of American workers. But what about those magical beings who toil away in the enchanted workshop, ensuring that presents are ready for delivery on Christmas Eve?

The FLSA sets the federal minimum wage, currently at $7.25 per hour. Now, we know Santa’s workshop isn’t your typical nine-to-five operation. With the elves tirelessly toiling away throughout the year, the question arises – are they entitled to minimum wage or overtime pay? Overtime pay, equal to one and a half times the regular rate, is applicable when an employee works more than 40 hours in a workweek. It seems reasonable to argue that their hard work and long hours leading up to Christmas Eve might warrant additional compensation.

However, the FLSA does provide exemptions for certain categories of workers, such as those employed in executive, administrative, or professional capacities. Could Santa’s elves fall into one of these categories? They do, after all, manage a complex operation, showcasing leadership, craftsmanship, and dedication that might parallel the criteria for exemptions.

The FLSA includes provisions to protect young workers from working excessive hours or in hazardous conditions. While we may think of elves as eternally youthful, it’s crucial to consider whether the FLSA’s child labor provisions apply to them. If they’re deemed to be minors, additional protections might come into play, including minimum age requirements for certain types of work and limiting the hours and conditions under which minors can be employed.

As we ponder the applicability of the Fair Labor Standards Act to Santa’s elves, it becomes clear that the holiday magic extends beyond the twinkling lights and jingling bells. While the FLSA was crafted with the American workforce in mind, the unique circumstances of Santa’s workshop present an interesting and whimsical challenge.

So, is Santa’s workshop subject to the regulations of the FLSA? It’s a complex issue that combines the enchantment of the holiday season with the practicalities of labor law. Perhaps, in the spirit of goodwill and festivity, we can appreciate the tireless efforts of Santa and his elves and assume that Santa takes good care of his employees.

If you have questions about overtime pay, working conditions, or the FLSA generally, please contact our office to schedule a consultation with any of our attorneys.

I hope that you had a happy holiday season!

-Elizabeth Millender, Litigation Attorney

Navigating Workplace Boundaries: Understanding Your Right to a Sexual Harassment Free Workplace

In the ever-evolving landscape of the American workplace, ensuring a safe and inclusive environment is crucial for the well-being of employees. Title VII of the Civil Rights Act of 1964 serves as a cornerstone in this effort by prohibiting discrimination based on a person’s sex or gender. Within the realm of workplace conduct, sexual harassment is a topic that demands attention and understanding. This blog post aims to shed light on what constitutes sexual harassment under Title VII, to provide clarity on what is, and is not acceptable in your workplace, and to give you a roadmap for how to hold your employer responsible when your employer violates your rights under Title VII.

Defining Sexual Harassment

Sexual harassment, as defined by Title VII, refers to unwelcome advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. This unwelcome behavior can create a hostile or intimidating work environment, interfering with an individual’s work performance and overall well-being. It is important to note that both men and women can be victims of sexual harassment, and the harasser and the victim can be of the same or opposite sex.

Types of Sexual Harassment

Title VII recognizes two primary forms of sexual harassment: quid pro quo harassment and hostile work environment harassment.

  1. Hostile Work Environment Harassment: Hostile work environment harassment involves unwelcome conduct of a sexual nature that creates an intimidating, offensive, or hostile work environment. This can include offensive jokes, explicit images, unwanted touching, or inappropriate comments that interfere with an individual’s ability to perform their job.  This is the most common form of sexual harassment.
  1. Quid Pro Quo Harassment: Quid pro quo, Latin for “something for something,” occurs when a person in a position of power, like a supervisor or manager, conditions employment benefits, like a raise, promotion, or continued employment, on the submission to unwelcome sexual advances. For instance, a supervisor demanding sexual favors in exchange for a promotion or job security is a clear example of quid pro quo harassment.

Common Scenarios of Sexual Harassment

Understanding the signs of sexual harassment is crucial for both employees and employers.  Many employees are victims of sexual harassment and never assert their rights to a safe and respectful working environment.  While each situation is unique, if any of the following scenarios sound familiar to you, you should consider taking action:

  • A co-worker continues to ask for a date or romantic encounter despite already turning them down.
  • Explicit images or sexual jokes are sent into a group text or email chain, even if not directed specifically at you.
  • A co-worker touches or massages your body without your permission.
  • You are involuntarily exposed, in person or by picture, to a co-workers naked body.
  • A co-worker uncomfortably discusses their own sexual activity.
  • A boss or supervisor gives favorable treatment to employees who give him or her sexual favors.
  • Co-workers ask invasive questions about your body or sexual activity.

Retaliation under Title VII

Title VII not only makes sexual harassment in the workplace illegal, it also makes it illegal for employers to retaliate against employees for engaging in protected activities related to sexual harassment.  Retaliation may include termination, suspension, demotion, harassment, or unfair treatment that comes as a result of protected activity. 

Protected activities which are protected under Title VII include reporting sexual harassment to any person of authority in the workplace, such as a supervisor, member of management, or human resources officer.  Protected activity includes reporting sexual harassment on behalf of oneself, as well as on behalf of others.  It also includes participation in any investigation into potential sexual harassment, and the refusal to submit to sexual harassment perpetrated by a person of authority in the workplace.

Legal Recourse under Title VII

Title VII provides a legal framework for addressing sexual harassment in the workplace. Employees who experience harassment can take the following steps:

  1. Internal Reporting: Report the harassment to a supervisor, manager, or human resources representative within the organization as soon as possible.  It is  legally difficult to hold an employer responsible for sexual harassment in the workplace if no member of management or human resources is ever informed of its occurrence.
  1. EEOC Complaint: If internal reporting does not resolve the issue, employees can file a complaint with the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing Title VII. Employees have the right to be represented by an attorney when filing with the EEOC. The EEOC will investigate the complaint and, if appropriate, may pursue legal action against the employer.
  1. Legal Action: In many cases, particularly where employees are physically assaulted or face termination as a result of sexual harassment, employees may choose to file a lawsuit against their employer. Consulting with an attorney can help individuals understand their rights and navigate the legal process.

Stand Up for Your Rights

Title VII is a powerful tool to combat sexual harassment in the workplace. By understanding the forms of harassment, recognizing the signs, and knowing the legal recourse available, you can stand up for your rights to a workplace free from sexual harassment and retaliation, and hold your employer responsible when they fail to protect your rights.

If you are a victim of workplace sexual harassment or retaliation, or want to better understand your rights to a safe and respectful working environment, please give us a call.  My co-workers and I take pride in representing victims of sexual harassment and retaliation, and using Title VII to hold employers responsible for illegal workplace conduct. 

-Attorney Chance Sturup

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Locations in Columbia and Rock Hill
P.O. Box 11675
Columbia, SC 29211
(803) 799-9530
info@cromerbabb.com

Fearless Advocates.
Fierce Challengers.

Cromer Babb & Porter, LLC provides the information on this website for informational purposes only. The information does not constitute as formal legal advice. The use of this site does not create an attorney-client relationship, and further communication with our attorneys through the website and email may not be considered as confidential or privileged. Any result achieved on behalf of one client in one matter does not necessarily indicate similar results can be obtained for other clients. Clients may be responsible for costs in addition to attorney’s fees. Please consult with our firm prior to relying on any information found on this site.