Employment Law for Employees
Cunningham Dalman helps employees with matters related to their jobs, whether it be wrongful termination, discrimination, failure to pay wages or overtime, Whistleblowing, or non-compete claims.
Cunningham Dalman has employment lawyers who specialize in assisting employees and employers.
Employment Law Services for Employees
Cunningham Dalman has a long record of success assisting employees with employment issues. We consult with employees and negotiate separation and severance agreements. We advise employees and draft and negotiate employment agreements and non-compete and non-solicit agreements. If negotiation fails, we have prevailed in lawsuits asserting claims of wrongful discharge, including claims under the Family and Medical Leave Act (FMLA), claims for Sex, Race, and Age discrimination, Whistleblower claims, and we file lawsuits to resolve wage disputes, including failure to pay overtime, and tipped employee issues under the Fair Labor Standard Act (FLSA).
Employee Rights in Michigan
Michigan employment law requires your employer to follow several state and federal requirements. Some of these requirements include:
- EEO, Diversity and Employee Relations
- Fair Employment Practices
- Disability Accommodation
- Pay and Benefits
- Whistleblower Protections
- Minimum Wage
- Overtime
- Time Off and Leaves of Absence
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Employment Law for Employees
Wrongful Termination
The most common lawsuit filed against employers is for Wrongful Termination. Our attorneys assist clients in understanding employment law and requirements associated with terminating employees.
Wrongful terminationWage & Overtime Disputes
Wondering if you are legally eligible for overtime? We assist employees in resolving these disputes.
Wage & Overtime DisputesSexual Harassment
Sexual harassment claims come in the form of inappropriate touching, unwelcomed advances, sexual jokes, favors for promotions, or a hostile work environment.
Sexual HarassmentWhistleblowers
Employers will often take action against employees who report illegal or suspected violations to public agencies. The Whistleblower Protections act protects you and we can assist.
WhistleblowersNon-Compete / Non-Solicitation Agreements
Employees are frequently required to sign a non-compete or non-solicitation agreement as a term of their employment. Many of these are unenforceable in some aspect.
AgreementsSeverance Reviews
Sometimes employers will offer up a severance package in exchange for a release of claims when terminating an employee. We highly encourage you to have one of our attorneys review your severance package.
Severance PackagesDiscrimination
It is illegal to discriminate against or harass an employee because of their age, race, gender, national origin, religion, or disability.
discriminationHaving an Employment Issue with your Employer?
Looking out for you. Our attorneys are fully aware of your rights in Michigan!
understanding your rights as an employee
Wrongful Termination
There are exceptions to the at-will employment rule that can create a claim for wrongful termination. While most employees are “at-will” and can be terminated for any reason or no reason at any time, there are instances where the termination is illegal. Some common examples would be firing a Whistleblower, termination to cover up discrimination based on age, race, sex, disability, national origin, or religion, or sexual harassment, or even breach of an employment agreement. If you feel you’ve been wrongfully terminated, contact Cunningham Dalman to have your claim reviewed.
Wrongful Terminations - Topics of Interest:
- The Whistleblower Protection Act - Michigan and federal laws protect employees who “blow the whistle” on illegal activity at their place of employment.
- Breach of Employment Contract - Some employees have employment agreements that limit the scenarios under which they can be fired.
- Illegal Discrimination - age, race, sex, disability, national origin, religion, gender, marital status, and even height and weight are protected statuses.
- Family Medical Leave Act - Employers who work for a company with over 50 employees may be entitled to protected leave under the FMLA if they have a qualifying serious health condition.
Family medical leave act - it's the law
FMLA
The FMLA protects leave for employees who suffer from a serious health condition, the birth or adoption of a child, and time off to care for a family member with a serious health condition. An employee who takes an FMLA leave has the right to return to his position so long as his doctor clears him to return to work within 12 weeks of taking the leave. An employee who is fired six weeks into their medical leave may have a strong claim that her employer violated the FMLA. In order to be eligible for FMLA leave, the employer must have over 50 employees and the employee needs to have worked over one year, for at least 1,250 hours. FMLA leave can cover one continuous period of time or intermittent leave to treat flare ups of chronic conditions. If you feel your FMLA rights have been interfered with, contact Cunningham Dalman to have your claim reviewed.
Important Topics to Understand:
- FMLA Eligibility - A company with more than 50 employees is required to provide up to 12 weeks FMLA leave to employees who have worked there for at least a year.
- FMLA Interference - Employers can interfere with an employees’ FMLA rights in a number of ways, such as requiring doctors’ notes for each absence during FMLA leave, requiring medical information that is not required by the law, or counting FMLA absences against the employee in a no fault attendance policy.
- FMLA Retaliation - Employers frequently terminate employees on FMLA leave. It may be that the employer is upset with the employee for being absent or that the company found it could get by without the employee. Either one is illegal retaliation.
eligible for overtime pay?
Wage & Overtime Disputes
Getting paid properly for your work is an important concern of workers. There are federal and state laws that control who is paid overtime, how to calculate overtime, whether a job is properly characterized as salaried, who can share in a tip pool, and when you get paid for on-call time, along with many other issues. We have handled numerous cases on behalf of employees, including class actions, to get workers the pay they deserve. If you feel you were not paid properly, contact Cunningham Dalman to have your claim reviewed.
Common Wage & Overtime Disputes:
- Misclassified As A Manager - Have you been misclassified under the management or executive exemption by your employer and believe you should be getting overtime?
- Misclassified As An Independent Contractor - many small employers try to avoid paying payroll taxes and overtime by classifying employees as independent contractors. But most workers are employees. If your employer tries to not pay overtime by claiming you’re an independent contractor, call us to review.
- Servers, Bartenders, and Tipping - customer tips to restaurant staff for good service are the property of the worker who receives them. While management can create a tip pool, if workers are paid less than minimum wage, the tip pool cannot include untipped workers or management. Any attempt by management to misuse a portion of these tips violates tipped workers' wage rights.
- Time Clock & Overtime Issues - While some rounding of clock in and out times are acceptable, if it is always in the company’s favor, it’s likely illegal. Also, if you’re docked for lunch time whether you take it or not, you may be entitled to recover lost wages.
- Unpaid Commissions - Michigan has a Sales Representatives Commissions Act that protects employees who are paid on a commission basis.
Are you feeling sexual harassment in your workplace?
Sexual Harassment
Sexual Harassment is prohibited by State and Federal Law. Michigan’s Civil Rights Act provides that unlawful discrimination on the basis of sex includes sexual harassment, which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- submission to the conduct or communication is made a term or condition … to obtain or maintain employment;
- submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment; and
- the conduct or communication has the purpose or effect of substantially interfering with an individual’s employment or creating an intimidating, hostile, or offensive employment environment.
An example of quid pro quo (this for that) sexual harassment would be a supervisor making sexual advances towards an employee and then terminating the employee after she rebuffed the advances. An example of hostile environment sexual harassment would be a company that failed to address complaints about pornographic pictures in the workplace.
If you believe you’ve suffered sexual harassment at your job, please contact Cunningham Dalman to have your claim reviewed.
Areas of Concern:
- Quid Pro Quo Harassment - where an employee's submission to or rejection of sexual conduct or communications is used as a factor in decisions affecting that employee's employment
- Hostile Work Environment - where the sexual conduct or communication creates an offensive or hostile work environment for the employee.
- Unwelcome Sexual Conduct or Communication - It’s not sexual harassment if it’s not unwelcome. Consensual dating of a coworker is not sexual harassment. But unwanted touching, text messages, comments, advances, or even jokes likely would fall into inappropriate behavior that may be the basis of a sexual harassment claim.
- Employer's Knowledge of Sexual Harassment - It’s important that if sexual harassment occurs, the employer is notified so that it can remedy this issue. But if the harasser is the owner or the CEO, employees may not know where to turn for help. Call us for a consultation.
protecting your rights as a whistleblower
Whistleblowers
Michigan has a very powerful law protecting Whistleblowers from retaliation. The Whistleblowers Protection Act (“WPA”) states that an employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee reported, or is about to report, verbally or in writing, a violation or a suspected violation of a state or federal law or regulation or rule, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.
Some common examples of where employers find themselves in trouble are when they terminate or demote an employee who reported unsafe conditions to MIOSHA, contacted the Department of Labor about not being paid properly, cooperated with a Liquor Control Investigation, or called the police after being assaulted at work. There is a very short statute of limitations for these type of cases (90 days), so if you feel you were discriminated against as a Whistleblower, please contact Cunningham Dalman to have your claim reviewed right away.
Whistleblower Issues:
- Report to a Public Body - The WPA only protects employees who made a report to a public body. That can be any number of agencies, including the police, the IRS, MIOSHA, the Department of Labor, the SEC, EGLE, a township board, LARA, or other public agencies.
- A Suspected Violation of State or Federal Law, Rule, or Regulation - You don’t have to be correct that a violation of the law occurred, but you must have a reasonable suspicion that something illegal happened. Knowingly false reports are not covered.
- Reports Must Occur While Still Employed - if an employee only makes the report to a public agency after being fired, there is no protection under the WPA – unless it can be shown that the employer knew the employee was “about to report” the action and they were fired to prevent that.
understanding what your employer is asking you to sign
Non-Compete / Non-Solicitation Agreements
Non-compete agreements may be stand-alone documents or may be included in an employment agreement or an employee handbook. The agreement usually sets forth a period during which the departing employees may not work for a competitor of the former employer and a geographic area within which the restriction applies. For example: Employee shall not become employed by, consult with or own any portion of any business that competes with ABC company in widget making business within 50 miles of ABC headquarters. This restriction applies during employee’s employment with ABC company and for two years following the termination of employee’s employment. Courts prefer the public policy of allowing people to work but will enforce a non-compete agreement to prevent unfair competition.
Non-solicitation agreements are often included with a non-competition. A non-solicitation agreement states that the employee will not reach out to or “solicit” the customers that the employee has worked with while employed by the company. There is usually no geographic or time restriction on the non-solicitation provisions.
Employers’ use of non-competition and non-solicitation agreements in West Michigan is on the rise. And that appears to be part of a national trend. Although there are proposed changes to the current laws that would make non-competes illegal, it has not been enacted yet. If you need to have your non-compete evaluated or you’ve received a cease and desist letter, please contact Cunningham Dalman to have your situation reviewed.
Non-Compete & Non-Solicitation Areas of Interest:
- Legitimate Business Interests - These are generally limited to two categories: one involving trade secrets or confidential material and the second providing protection for the employer's goodwill toward its customers.
- Attorney Fees - Michigan follows the rule of most states, which is that each side pays its own attorney fees, unless there is a statute (a law) that requires the losing side to pay for the winner's attorney fees, or unless there is a contract that provides for one side to recover attorney fees.
let us review your severance package before your sign
Severance Reviews
When an employee is terminated from his or her job, the employer will often present the employee with a severance agreement. A severance agreement is a promise by the employer to pay salary or wages and other benefits in exchange for the employee giving up the right to sue the employer. There is no law that requires a severance be paid and offering a severance to a departing employee is not an admission of liability or guilt. It is often simply a business decision to pay an employee to release any potential claims, whether there is a valid claim or not.
Some companies have severance policies or a severance is a term of an employment agreement. If you think you may be fired, investigate the employer’s policies regarding severance payments. You usually cannot access the systems to review this after you’ve been terminated.
Never agree to anything about severance at the termination meeting. Listen to what the employer says, but don’t offer to sign anything and, if asked to sign, let the employer know that you will need time to talk with your spouse, family or attorney before deciding. Speak to an experienced employment lawyer, such as those at Cunningham Dalman, about your severance before you decide to sign. The lawyer may find that you have a case to file against your employer for wrongful discharge. If you have a viable lawsuit to file, the lawyer may be able to negotiate better terms, including more pay, payment of the employer portion of your health insurance premiums, and other benefits. There could also be other issues with how the termination is characterized for unemployment filing, non-compete issues, and what can be said and what must be kept confidential.
Severance Reviews - Items to Consider:
- Lump Sum vs Pay Continuation - you cannot file for unemployment benefits while still receiving a severance.
- Effects of Release - Signing the release will prohibit the filing of nearly all claims against the employer.
- Post Employment Restrictions - it is important to understand what you prohibited from doing after your separation. Is there a non-compete? What constitutes a breach of the agreement?
- Confidentiality - Due to a recent NLRB decision, an employers’ ability to protect the confidentiality of a severance agreement is limited.
know your rights as an employee
Discrimination
We represent employees who face discrimination in the workplace, including discrimination based upon age, sex, race, disability, gender, national origin, and religion. It’s not enough that an employee just fall into one of these protected classes, the discrimination or harassment must be because of the belonging to the protected class. Discrimination can exist in a number of different ways. It can be blatant, like with the use of racial slurs, or it can be subtle, with different unwritten rules for men vs women. If you feel you’ve been a victim of discrimination in your workplace, please contact Cunningham Dalman to have your situation reviewed.
Discrimination Topics:
- Sex and Gender - it is illegal to discriminate not only on the basis of sex, but also for not complying with gender norms.
- Race
- Disability - The ADA Amendments Act of 2008 ("ADA AA"), which was signed into law on October 3, 2008 and went into effect on January 1, 2009, was passed to expand the number of employees who are protected by the ADA.
- Religion - You cannot be terminated for your religious views and religious practices must be reasonable accommodated. But courts have routinely dismissed cases where people’s religious beliefs demand that they share their beliefs with others in order to spread their faith.
Employment Law FAQ
Most frequent questions and answers by Employees
- Sexual Harassment
- Hostile Workplace
- Wrongful Termination
- Discrimination
- Unpaid Overtime
- Wage & Hour Violations
- Retaliation / Whistleblower Protections
- FMLA Violations
In general, Michigan courts will enforce non-compete agreements that are considered “reasonable”. In Michigan, there are commonly four factors that determine the reasonableness question related to a non-compete. The line of business or type of employment, the duration, the geographical limits, and business interests the employer is attempting to protect.
