You advise, write, and speak about legal issues affecting both employers and employees. For women who have been out of the workplace for a while, what has changed in the last 10 or 20 years, when it comes to employee rights?
The last 20 years have seen many changes in workplace rights and laws, as well as in how job searches are conducted. Anti-discrimination laws have added protections for sexual orientation and identity, and make it easier for workers to establish rights to disability and pregnancy accommodations. The advent of technology and telecommuting, with more flexible schedules, has enabled more women to join or remain in the workplace.
Privacy and social media laws and cases have limited employers’ regulation of employee conduct, but have also clarified valid restrictions on employee social media. Employers can monitor employee computers, email, and phone calls. The legalization of medical (and in some places, recreational) marijuana has greatly affected workplace rights and obligations, including whether a terminated employee can collect unemployment compensation.
Finally, the “job” of conducting a job search has changed tremendously with technology, the recession, and the reality of employer hiring. There are now multiple work options, from full-time to part-time employment, temporary or project workers, salary vs. hourly pay, benefits or no benefits. Gone is the day of sending 100 resumes; even simply filing online applications is not enough. Today the key is connections and networking, making the best use of LinkedIn and other social media, and learning the new ways to seek and land satisfying work.
What are the biggest legal challenges you see facing employees, women in particular, as they leave their jobs or re-enter the workplace in midlife?
Apart from the economic, transitional, and job search challenges, women (and certainly others) face their own personal difficulties. One example is guilt about re-entering the workplace and having less time for children, home and spouse. Another is lack of confidence to return or transition to a new career, ask for a certain salary or benefits, or even start a business. But it has been exciting to find that when clients and friends take that leap, they are amazed at what they can achieve.
I also love to encourage clients who remain paralyzed in unhappy employment situations that there is a “light at the end of the tunnel.” Leaving a job without a plan can be scary. Loss of income, benefits, and productivity are significant changes. Legal challenges may include compliance with and the defense of claims on post-employment restrictive covenants, such as non-competes and non-solicitation of customers. Employees may have to fight or file claims for unpaid wages, bonus, or vacation. Legal counsel should review severance and release agreements. Employees who feel they are being treated unlawfully or were fired illegally might consult with counsel or complain to HR.
What questions should these women always ask as they consider a job offer? What rights should they be aware of?
Just as employers should ask appropriate interview questions, female job candidates have to consider the correct topics to approach in discussing an offer. Much depends on the circumstances of the employer and position. Questions should be only those most relevant and necessary to deciding whether to accept the offer, without raising legitimate employer concern. For example, I often hear from employers that the “millennial” candidates are quite direct and often “entitled.” They tell interviewers off the bat that they won’t work weekends or late nights, want flexibility to work from home, etc.
So while an applicant may have some valid basis for time off for parent-teacher conferences, sick children or parents, or other accommodations, there is no need to raise red flags at the interview. Limit questions to the immediate needs. Usually the employee handbook will state the company’s policies and employers will be bound by laws providing rights to candidates and employees.
Legal rights of middle-aged women candidates and employees include being free from discrimination and harassment in hire and employment decisions, being properly classified as an employee or independent contractor and as exempt or nonexempt from overtime compensation, and receiving equal pay as men doing comparable work. They have the right not to be bullied or forced to quit by a manager who targets women and/or older workers. At employment termination, employees are legally entitled to accrued salary and vacation pay, earned bonus, and usually unemployment compensation, without having to sign a release. Older workers are protected by special laws to make sure their release of age discrimination claims is valid.
On the flip side, what legal issues do you see employers increasingly grappling with as they hire and fire middle-aged female employees?
During these recent years of recession and high unemployment, employers have faced many issues and obligations to employees. Employers should always carefully plan and monitor their operational hiring/employment needs. Of course, the financial aspect is key, but employers must also focus on diversity, protected class statistics (e.g. race, age, gender, sexual orientation, nationality, etc.), and managerial decisions based on legitimate, nondiscriminatory business reasons.
Whether employers are streamlining or growing their business, their selection of employees discharged, employees retained, and new hires must consider the big picture. Are most of the employees being cut older and/or women? What do the protected class statistics of the workforce look like before and after the reduction-in-force? Are the older employees being replaced by less qualified younger employees? Can the company avoid a reduction in force by a less drastic economic and legal alternative, such as reduced schedules or salaries, mandated furloughs, or limits/bans on overtime work?
The federal, state, and local anti-discrimination laws protect middle-aged female employees based on gender, age (40 and older), and, when applicable, pregnancy, disability and other bases. The laws generally protect all individuals based on race, color, nationality, religion, and require accommodations for disability, religion, and, per some state laws, pregnancy. The laws prohibit discrimination and harassment based on a protected class, as well as retaliation for complaining.
Additional legal issues employers face in their hire and fire decisions include:
- Wages and bonus;
- Equal pay laws for men and women;
- Asking lawful questions in interviews and in response to requests for medical or family leaves;
- Saying the right thing during performance reviews, discipline, and termination;
- Worker misclassification (whether they properly classify workers as independent contractors vs. employees, and as exempt vs. nonexempt from overtime). Claims raised by discharged workers, government audits, class actions, and big money damages are common;
- Giving separated employees the compensation and benefits they are due by law (without condition of signing a release); and
- If providing severance, having legally enforceable severance agreement language, with valid release, and noncompetes and other restrictive covenants that meet legal requirements.
What resources do you recommend for women to further educate themselves on employment issues and their legal rights?
Women Employed’s programs, speakers, and resources on workplace rights
Working Mother online magazine
National Labor Relations Board (NLRB) Reports & Guidance, which apply to both union and non-union employers
NLRB Fact Sheets
U.S. Dept. of Labor publications
The Career Resource Center (CRC) in Lake Forest offers a broad array of excellent assistance, through personal advisors, workshops, and support groups, to empower candidates to find their next job.
Contact Lori A. Goldstein, LLC at (847) 624-6640 and firstname.lastname@example.org
Lori Goldstein, an employment lawyer since 1984, represents business owners, employers and employees through her sole practice, the Law Office of Lori A. Goldstein LLC. After receiving her undergraduate and law degrees from University of Illinois, Lori worked for two mid-sized Chicago law firms before starting her own firm in 2011. Lori advises on workplace rights and issues including discrimination, harassment and retaliation, equal pay, wage-hour, employment and independent contractor agreements, and severance agreements. Lori also conducts employer compliance audits and training, presents regularly on employment topics, and handles administrative claims and defense of charges of employment law violations. Lori is passionate about helping organizations and individuals achieve peaceful solutions to workplace issues, find closure, and move forward.