Free Speech, Private Employment, and Duck Dynasty

The First Amendment guarantees American citizens the right to free speech, but this right has its limitations in private employment.  A couple weeks ago, the First Amendment became the center of attention when a Duck Dynasty cast member, Phil Robertson, made negative remarks regarding homosexuality.  Even more recently, the cast member made remarks about marrying teenage girls.  In reaction to Phil’s remarks, A&E, the network responsible for the show, temporarily banned Phil from the show.  This sparked a national conversation regarding the interplay between the right to free speech and the rights of private employees.

American citizens generally have the right to free speech, which is guaranteed by the United States Constitution.  However, the Constitution does not necessarily provide private employees with the right to free speech while they are acting within the scope of their employment.  Therefore, private employers may be able to place limitations on an employee’s speech while at work.  For example, stores like Target or Walmart have the ability to limit the speech of their employees while the employees are assisting customers.  Otherwise, employers would have limited control over their businesses.

However, private employers should use caution when disciplining or terminating an employee for his or her speech.  Federal and state laws prohibit employment discrimination based on race, national origin, religion, sex, disability, and various other protected categories.  The law also prohibits employers from retaliating against an employee who complains about discrimination.  Therefore, depending on the nature and topic of the speech, a terminated employee might have a claim for discrimination or retaliation.  Additionally, a terminated employee may have a claim under the NLRA, which provides employees with the right to collectively discuss working conditions.

This area of law is extremely complicated and the outcome various based on the facts of the case.  Any employee terminated for his or her speech, should consult with an employment lawyer.  Also, an employer seeking to terminate an employee should consult with an employment attorney and consider the potential public criticism attached to such an action, similar to that experienced by A&E.

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The information contained in this website is not legal advice and it is not intended to be legal advice.  You should consult with a licensed attorney if you believe that you may have a claim or if you have a claim against you.

 

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The Complex Nature of Paying Tipped Employees

Most employers and employees do not fully understand the laws regarding how to properly pay tipped employees because this is a very complex area of law.  The Fair Labor Standards Act (FLSA) mandates that the vast majority of American employees must be paid minimum wage by employers.  However, the FLSA carves out specific exceptions.  One exception is for tipped employees.  The FLSA allows employers to pay tipped employees as little as $2.13 an hour, provided that the employees meets certain requirements and the employers follows strict guidelines.  For example, an employee may only be considered a tipped employee if the employee is one that customarily and regularly receives tips.  Most of the time, a non-customer facing employee is not considered a tipped employee and must be paid the applicable minimum wage, which is at least $7.25 an hour.

Also, tips belong to the employee, not the employer.  However, although an employer cannot takes tips from a employee, an employer may force an employee to participate in a valid tip pool.  The FLSA has rigid guidelines about when an employer can force employees to participate in a tip pool.  These requirements include mandates on the maximum percentage an employer can require an employee to give to a tip pool, who can participate in a pool, and how the tip pool is structured.  Tip pool violations carry hefty penalties for employers.  Employer and employees should seek legal advice on whether the tip pool is valid.

Tipped employees are often paid incorrectly.  When an employer makes a mistake in this area, the employer often owes every affected employee (1) lost wages, (2) liquidated damages in the amount of double the lost wages, (3) and applicable attorney fees.  Normally, an employee can claim unpaid wages for the two year period immediately preceding the claim.  However, if the employer was acting willfully, an employer may be entitled to seek damages for the three year period immediately preceding the claim.  Thus, damages can add up quickly.

Employers should be careful to audit their wage policies and ensure that their employment practices comply with applicable state and federal wage laws.  Employees should also take steps to understand whether they are being paid correctly.  Stacy Cole Law, P.C. assists both employees and employers in claims for unpaid wages.

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‘Tis the Season for Religious Accomodations…

It is extremely easy for an employer to forget that the holiday season is based on religion for the majority of employees.  The law prohibits an employer from discriminating against an employee because of religion.  Additionally, an employer must offer a reasonably accommodate an employee’s religious belief, if needed.  A reasonable accommodation could be as simple as allowing the employee to take off work to observe their religious holiday, such as Christmas or Hanukkah. Of course, it is not always clear what is and what is not a reasonable religious accommodation.

There are simple steps that employees and employers can take to avoid conflict.  However, contact Stacy Cole Law, P.C. if you have a dispute in the workplace regarding religious accommodations.

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FMLA Medical Leave Rights

The Family and Medical Leave Act requires certain employers to allow employees the right to take up to twelve weeks of medical leave without pay.  This medical leave can be taked to treat an employee’s personal medical condition or the medical condition of an employee’s immediate family member.

There are numerous requirements that must be met before an employee is protected by the FMLA.  However, if these requirement are met, an employer is not allowed to retaliate against an employee for taking medical leave.  FMLA retaliation could give the employee a cause of action against the employer.

Employers must take precaution when an employee takes any type of leave where the FMLA may be implicated.  Additionally, employees must follow employer policies to gain FMLA protection.  If you are an employer or employee and are dealing with an FMLA issue, contact Stacy Cole Law, P.C. today.

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