Here’s one more “fire” to “put out” in your very busy day–Your very upset client has just called your office and told you that their employer just fired them and they think it was based upon discrimination.
What do you need to know in order to best advise your client?
- Is my client an “employee” or an “independent contractor”?
In the Employment Law arena, only “employees” or “applicants” are protected under federal, state or local anti-discrimination and harassment laws. Nonetheless, it is possible that the employer has misclassified your client as an “independent contractor”. The key inquiry is whether the method and manner of your client’s work was controlled by the company.
- 2. What’s my client’s “protected category”?
The employee must be a member of a protected category such as race, religion, gender, sexual orientation, pregnancy, disability (or perceived disability), or over 40 in order to bring a claim for discrimination, harassment, or retaliation. The one exception is that, under the Americans with Disabilities Act, an employee can claim associational discrimination if they suffer from discrimination due to associating with a disabled individual.
- How many employees does my client’s employer have?
Under federal and state laws preventing discrimination based upon a “protected category”, the “magic number” is 15—generally, not including any “owners” of the company. Local laws vary, with some requiring as few as 5 employees in order to covered by employment laws prohibiting discrimination, harassment, and retaliation.
- Was my client injured at work?
If an employee is injured while at work, they can make a worker’s compensation claim. If the employer harasses, retaliates, or otherwise discriminates against the employee based on a work-related injury or does not accommodate the employee’s needs due to the injury, the employee may have a retaliation claim and a discrimination claim under the anti-retaliation provisions of the Workers’ Compensation Act or employment laws prohibiting disability discrimination.
- Did my client request medical leave?
Requests for medical leave to attend to a disability or injury may be considered a request for reasonable accommodation under disability discrimination laws. Also, if the employee is eligible for medical leave for a serious medical condition to care for themselves, their spouse, parent or child, they may be entitled to leave under the Family & Medical Leave Act—but certain threshold requirements must be met such as the time the employee worked at the company and whether the company has a minimum of 50 employees within a 75-mile radius of the employee’s workplace.
These important issues impact your client and their family. If you have any questions, please contact Gina Cadogan, Esq. at Cadogan Law via email or by phone at 954-546-7501; or at 300 S. Pine Island Rd., Suite 107, Plantation, FL 33324.
Now, on to your next “fire”…!