T H E   L A W  O F F I C E S  OF
SELF MOREY & ASSOCIATES
A PROFESSIONAL LIMITED LIABILITY COMPANY

Employment & Labor Law

With more than 15 years of experience, including representing employers conducting business in all 50 states, Self, Morey & Associates is ready to guide you through issues involving:

Discrimination

Drug and Alcohol Workplace Testing

EEOC & Human Rights Commission & Department of Labor Claims

Employee Benefits, Retirement Plans & 401(k) audits

Employment Contracts

Employee Handbooks

Exempt vs. Nonexempt Classifications

Family and Medical Leave

Internal Investigations

Labor Department Claims Severance Pay

Sexual Harassment

Unemployment Benefits

Unpaid Wages/Overtime

WARN Act Compliance (mass layoffs and closings)

Whistleblowing/Retaliation

Wrongful Termination

 

DISCRIMINATION 

Oklahoma and/or federal law requires employers to maintain a work environment free of discrimination on the basis of an employee's race, religion, color, national origin, ancestry, disability, medical condition, sex, age, pregnancy and status as a smoker or non-smoker.  Upon having reasonable knowledge that a particular type of harassment or discrimination is occurring, an employer is usually required to take reasonable steps to protect its employees from further similar conduct.  Employers who fail to address the situations may subject themselves to liability if the employee chooses to file a law suit. 

 

DRUG AND ALCOHOL WORKPLACE TESTING

Private employers who choose to conduct drug or alcohol testing may only request or require an applicant or employee to undergo testing as follows:

1)         as part of the job application process;

2)         if there is a reasonable suspicion that the employee has violated a written policy against drugs or alcohol;

3)         after an employee has sustained a work-related injury;

4)         if the employer’s property has been seriously damaged;

5)         pursuant to a written random selection testing policy; and

6)         pursuant to a routine part of a periodic fitness-for-duty examination required of all members of a particular employment classification; and

7)         post-rehabilitation testing for two years after an employee returns to work following a confirmed positive test.

 

Certain public employees such as police officers, drug interdiction personnel, corrections officers and others are subject to different rules.  

 

EEOC, HUMAN RIGHTS COMMISSION AND DEPARTMENT OF LABOR CLAIMS 

We can assist both employees and employers in pursuing and/or defending claims with the Equal Employment Opportunity Commission, the Human Rights Commission and the Department of Labor from their administrative inception through judicial appeal. We may also represent clients, on an as needed basis, during preliminary hearings, hearings on the merits of the labor board claim, and appellate hearings in court.

 

EMPLOYEE BENEFITS, RETIREMENT PLANS, 401(K) AUDITS, ETC.

Our attorneys have helped their clients start and manage all types of employee benefit plans.  These include health insurance, dental plans, vision plans, employee assistance plans, short term disability, long term disability, life and dependent life insurance, 401(k), phantom stock, golden parachute and other plans.

EMPLOYMENT CONTRACTS AND SUBCONTRACTOR AGREEMENTS
The language included in an employment contract will have a profound effect upon an employee's terms and conditions of employment, discipline and termination, among other material things. Often times, the language in an employment contract is sufficiently vague or ambiguous to be subject to more than one reasonable legal interpretation, which may ultimately lead to a legal dispute. Employees and employers alike are well-advised to have all employment contracts reviewed by experienced counsel prior to execution. The same applies to Releases or Settlement Agreements drafted upon termination of employment, and agreements used with sub-contractors. 

 

An issue that frequently arises is whether an employee is legally subject to termination in light of language included in an operative employment contract. If the employer is unable to conform to the employment contract in instituting discipline or termination, a claim for breach of employment contract against the employer may be viable.

 

EMPLOYEE HANDBOOKS

We recommend that most employers maintain properly drafted written workplace policies. In fact, there are certain written policies which are either required to be maintained and/or which will serve to highly benefit the employer if they are indeed maintained. Having appropriate written policies in effect may relieve employers from substantial liability in employee lawsuits.

 

A written policy against unlawful discrimination and harassment in the workplace is one such policy. The language in such a policy may even impact punitive damages awards in discrimination suits.  Such policies must be adequately drafted and must provide employees with a proper complaint and investigative procedure. There are other policies which employers are well-advised to incorporate, such as a properly drafted at-will employment policy, among other things.

 

Often times, employee handbooks are simply too voluminous and serve to unnecessarily create contractual obligations upon employers that would not have otherwise existed, resulting in a vast limitation upon employer discretion. As a result, in many circumstances, "less" is indeed "more" when taking into consideration which policies an employer should implement in writing.

 

In light of this, employers are strongly encouraged to have experienced counsel develop appropriate policies and/or review existing policies for legal compliance.

 

EXEMPT AND NON-EXEMPT EMPLOYEE CLASSIFICATIONS - OVERTIME PAY
The misclassification of employees as exempt or non-exempt is a growing problem with employers.  For instance, some salaried employees who are classified as "managers" may be improperly classified as exempt. To be properly classified as exempt, a "manager" must generally be paid a salary equivalent to at least twice the minimum wage, have specified customary supervisory authority over two or more employees, customarily exercise independent discretion and spend more than 50% of the time performing managerial duties. Improperly classified employees may be entitled to overtime compensation and may recover such unpaid overtime wages for the last 3-4 years.

 

If an employer has misclassified its employees and the practice is widespread, it could be subject to a class action seeking restitution for the nonpayment of overtime wages, interest and reimbursement of attorney fees on behalf of all current and former misclassified employees within the preceding four years.

 

FAMILY AND MEDICAL LEAVE

There are different types of unpaid medical leaves that may be taken as a matter of law, such as pregnancy leave, family and medical leave (to care for one’s self or for certain family members), and others. The law applicable to leave is relatively expansive and involves an analysis of each employee's particular circumstance.

 

For example, in order to determine the length of pregnancy leave to which an employee is entitled, the law looks to whether the employee has suffered any pregnancy-related medical conditions or complications. As an another example, in order to determine whether an employee is entitled to take a family or medical leave, the law generally considers the following factors: the length of the employee's employment, the number of hours worked, the number of employees at the place of employment, the nature of the health condition for which the leave is required, and whether the health condition pertains to the employee or an employee's spouse, child or parent, among other things.

 

Generally-speaking, if an employee requires an accommodation for a disability, the accommodation must be reasonable and the employee must be able to perform the essential functions of his/her job, with or without the accommodation. However, a primary factor in this analysis is whether the disability is a legally-recognized disability which is known to the employer. Employees with physical or mental impairments which limit their ability to perform a major life activity tend to qualify for accommodation. In such cases, reasonable accommodations must be afforded, unless it would cause undue hardship upon the employer.

 

It is important to note that the law in this area is quite complex and, therefore, not every condition qualifies for legal protection or for a permitted leave. For more detailed information on this topic, please call or email Self, Morey & Associates.

 

INTERNAL INVESTIGATIONS BY EMPLOYERS 

In many circumstances, employers should consider retaining experienced counsel to conduct internal investigations of employee complaints. This is particularly so when an employer receives an internal complaint pertaining to alleged sexual harassment or other unlawful harassment or discrimination in the workplace. This is also advisable when a current or past employee files a complaint with the Department of Labor, Human Rights Commission, Equal Employment Opportunity Commission or other regulatory board.

 

Employers have certain duties immediately upon receipt of complaints of sexual harassment or other unlawful harassment or discrimination, or once the employer has reasonable cause to believe that such conduct may be occurring in the workplace. Not only must employers stop unlawful conduct, they also must launch immediate neutral investigations into allegations raised. Employers who fail to do so may expose themselves to additional liability down the road should the affected employee file a lawsuit.

 

The amount of Punitive Damages available to the employee in a lawsuit largely depends upon whether the employer had actual or constructive notice of the unlawful conduct, as well as, upon the appropriateness of the employer's actions in preventing and investigating it. As such, employers must make every effort to conduct non-partial and neutral investigations into employee allegations, including conducting and documenting proper interviews of the complainant, the accused and all known or possible witnesses.

 

Quite often, it is difficult for employers to meet these legal requirements in an internal investigation --particularly when the accused is a high-level managerial employee, or when the employer lacks an adequate Human Resources department with the proper training. Because an employer's conduct will be highly scrutinized after a lawsuit has been filed, many employers elect to retain an outside neutral investigator to conduct the requisite investigation. Employers are well-advised to consider this option.

 

SEVERANCE PAY

Severance pay is not required in Oklahoma, regardless of the length of employment or the employee's position. However, some employers contractually bargain for severance pay in employment contracts. Other employers may bind themselves to the payment of severance pay as a result of their employment practices and policies such as providing severance pay to other employees.  If you have questions or concerns regarding severance pay, contact the employment attorneys at Self, Morey & Associates today.

 

SEXUAL HARASSMENT 

There are two theories of liability under a sexual harassment claim: (1) Quid Pro Quo; and (2) Hostile Work Environment. Quid Pro Quo sexual harassment can be established when employment, continued employment or employment benefits are specifically conditioned upon submission to unwelcome sexual advances. Hostile Work Environment sexual harassment occurs when an employee is subjected to unwanted sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature which is sufficiently severe or pervasive to alter the conditions of the work environment so as to create an environment that is abusive and hostile, as a matter of law.

 

In addition to the above, whether a sexual harassment allegation is legally viable against the employer largely depends upon the title and position of the person(s) committing the harassment, the notice given to managerial employees of the harassment, the employment policies of the employer, any action, or lack of action, taken by the employer after receiving a complaint of sexual harassment and whether a proper investigation took place.

 

Employers who fail to properly address such complaints may expose themselves to significant liability down the road should the affected employee file a lawsuit.

 

UNEMPLOYMENT BENEFITS
The employment attorneys at Self, Morey & Associates have many years of experience in representing employees and employers in claims for unemployment insurance benefits.  We are ready to assist with Oklahoma Employment Security Commission hearings today.
 

WAGES AND OVERTIME  

In accordance with the labor laws, during employment, employees are entitled to the timely payment (at least twice monthly with certain exceptions) of all wages earned, including overtime wages. Failure to pay these earned wages may subject an employer to penalties and interest.  Generally, non-exempt employees working over 40 hours per week in one workweek must be compensated at 1.5 times their hourly rate.  Employers who violate overtime provisions may be subject to substantial penalties, as well as interest.

 

Failure to adhere to these and other wage-related provisions of the labor code may subject employers to both Department of Labor claims and civil lawsuits. If the practice is widespread, it could also subject an employer to a class action seeking reimbursement of wages owed to all current and former employees similarly affected within the preceding few years, as well as penalties, interest and reimbursement of attorney fees.

 

WARN Act

Employers that have mass layoffs and plant closings must first comply with the WARN Act.  This may include helping workers find new employment through career counseling, resume training and related activities.  Penalties for violations of the WARN Act are strict.  If you are an employee or employer involved in a layoff or plant closing, contact the employment attorneys at Self, Morey & Associates for further information. 

 

WHISTLEBLOWING/RETALIATION

Under most circumstances, employees having no specified term of employment may indeed be terminated with or without cause or prior notice. This is called at-will employment. However, if an employee, at-will or otherwise, is terminated for "blowing the whistle" on an employer's violation of a legally-recognized public policy, a claim for retaliation may arise.

 

For example, an employee who discloses information to a government or law enforcement agency concerning the employer’s violation of a state or federal law may not be terminated for doing so.

 

There are various scenarios under which an employee may receive legal protection from retaliation or termination due to a disclosure of a violation of a state or federal law. For more information on these protected activities, please call or email the law offices of Self, Morey & Associates.


WRONGFUL TERMINATION 

Oklahoma is an “at will” employment state and permits the termination of employment, having no specified term, without cause or prior notice. In other words, an employee can quit his/her job, and an employer can terminate an employee, at any time, with or without cause or notice. This is called at-will employment.

 

However, some employers engage in conduct that tends to override the presumption of at-will employment, such as making contrary representations during the hiring process or during employment. For example, comments such as, "You will become a permanent employee after the introductory period," "As long as you perform well, you will have a job here," "We're looking for long-term employees," and the like, may tend to defeat the at-will claims of an employer.  Should this be the case and that employee is terminated without cause, an employee may have a claim for wrongful termination.

 

Wrongful termination may also be alleged when an employee has engaged in certain legally-protected conduct. For instance, an employee may not be terminated because he/she has complained of sexual harassment. There are a variety of other scenarios in which an employee becomes legally "protected" from termination by engaging in certain legally-protected conduct.

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