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Non-disclosure agreements (NDAs) have become increasingly common in the U.S. workforce. According to the Harvard Business Review, over one-third of American employees are bound by an NDA, and those NDAs have become broader in terms of what they prohibit, too. While some NDAs are necessary to serve legitimate business purposes, they are also a tool that employers exploit to weaken employees’ rights. And one of the most troubling uses of NDAs is to silence victims of harassment and discrimination in the workplace. What are NDAs, and how are they changing? A non-disclosure agreement is simply a legal contract that prohibits a party from sharing confidential information with others. NDAs are also known as confidentiality agreements or simply non-disclosures. Traditionally, NDAs were mostly used to protect trade secrets and other intellectual property. They can serve a valuable purpose when businesses are discussing potential deals and need to share confidential information in order to reach an agreement. NDAs are also commonly signed as part of harassment and discrimination settlements. However, NDAs are increasingly popping up in standard employment contracts upon hiring, and their scope increasingly goes well beyond trade secrets. Often, NDAs are broadly worded to prevent employees from speaking up about corporate culture and day-to-day operations at the company. Many employees have signed NDAs prohibiting them from talking about anything that would portray the employer in a negative light, a category that, of course, includes speaking up about harassment or discrimination. NDAs are sometimes bundled with non-compete clauses, which carry their own host of issues for employees. And a sufficiently broad NDA can functionally serve as a non-compete by requiring employees not to take any knowledge gained at their current job, even general know-how, to their next job. NDAs can make reporting harassment and other toxic workplace behaviors impossible As Forbes reported, the widespread use of NDAs can make it incredibly difficult for victims of sexual harassment and other unlawful workplace behaviors to come forward. According to Forbes, minimum wage workers—those least likely to have access to trade secrets and confidential information—are actually more likely to have signed NDAs than other employees. “Those are the people who legitimately can't afford to come forward. Not only can they not afford legal representation, but they can't risk being unemployed,” said Gretchen Carlson, cofounder of Lift Our Voices, a nonprofit organization that advocates for workers’ rights. Federal legislation has made some progress to ease the burden NDAs place on harassment victims. Signed into law in 2022, the Speak Out Act makes NDAs unenforceable in cases of sexual harassment and assault. However, this law only applies to NDAs signed before the harassment occurred; NDAs signed afterward, such as those that are part of a settlement, remain enforceable. Furthermore, the Speak Out Act doesn’t cover discrimination or other types of unlawful harassment. If you have been harassed at work and are under an NDA, get legal advice right away Non-disclosure agreements can make it significantly more difficult for victims of harassment to come forward, but employees still have legal rights. That’s why it’s so important to talk to an attorney right away. A lawyer can listen to your story in a privileged, confidential setting and explain your legal rights and options. In addition to pursuing compensation for harassment, it may be possible to get the NDA invalidated if it is overbroad or otherwise legally suspect. If you’ve been harassed at work, you don’t have to suffer in silence. Contact Nilges Draher LLC to schedule your free case evaluation. We can help.

Last month, the federal Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination and harassment laws, released a guide to help construction employers address harassment on job sites. The federal agency is paying close attention to a pervasive problem EEOC guides such as this one serve two purposes. They provide information about anti-harassment best practices for both employers and employees, but they also put the industry on notice that the EEOC expects a higher standard moving forward. While the guide itself does not have the force law, it shows what the agency is looking for employers to do to address the ongoing problem of harassment on job sites, and that has implications beyond the construction industry. What’s included in the EEOC guidance for construction companies Highlights of the EEOC’s guidance include: Leadership: project owners, general contractors, crew leads, union stewards, and other leaders on construction sites need to clearly explain that harassment will not be tolerated on-site. Comprehensive policies: contractors and subcontractors need clear, comprehensive anti-harassment policies in place that describe who is covered, what conduct is prohibited, and what workers should do if they experience or witness harassment. Robust harassment complaint system: leaders must be responsive to harassment complaints submitted through both formal and informal channels, in the languages commonly used by construction workers. Effective harassment training: having rules and policies is of limited value if managers and employees don’t know about those policies. Training programs should be tailored to the work environment and reinforced by site owners and team leads. Stakeholder buy-in: the EEOC recommends that project owners and sponsors, including state and local governments, should consider requiring anti-harassment measures in contract bids. What is unlawful harassment on construction sites? Not all crude or even hostile behavior on a job site is illegal harassment. To be unlawful, harassment must meet two criteria. First, it must be severe and pervasive, to the point where a reasonable person would consider it intimidating, hostile, or abusive, and enduring the offensive conduct must become a condition of continued employment. Second, the harassment must be based on a legally protected characteristic, such as race, gender, religion, national origin, age (if over 40), disability, or genetic information. Unfortunately, the construction industry has developed a reputation for some particularly egregious incidents of harassment. In 2020, following the killing of George Floyd, dozens of nooses appeared on construction sites across the country, according to Construction Dive. Other examples of illegal harassment include sustained and severe taunting, threats, and vandalizing toolboxes or personal property. It’s also illegal for construction employers to retaliate against workers for raising complaints of discrimination or harassment. Examples of retaliation include cutting hours or transferring the worker to a less desirable site. What to do if you’ve been harassed on a construction site You need to take a few steps to protect your rights as a victim of harassment on a construction site. First, document everything. Write down what happened, when, where, and who, if anyone, witnessed it. Then, follow your employer’s procedure for reporting harassment if they have one. If not, tell your crew leader, foreman, or someone else in charge on site. It’s also important to get experienced legal advice as soon as possible if you’re dealing with unlawful harassment. Talking to a lawyer isn’t a commitment to file a lawsuit or a formal complaint; it’s an opportunity to tell your story and get answers about what you can do next. Give us a call or contact us online for a free case evaluation with Nilges Draher LLC. We can help.

In Ohio and across the United States, wage theft is a multi-billion-dollar issue. According to the Economic Policy Institute, wage law violations may cost employees up to $50 billion a year – but the actual number is incredibly hard to pin down because so many cases of wage theft go unreported and uninvestigated. If your employer is violating the wage and hour laws, we can help The only way to change that is for more workers to know their rights and speak up when their employers violate the law. Here’s what you need to know about spotting wage theft and how an experienced wage law attorney can help you take action if you are a victim. By law, you should be paid for all hours worked Under the federal Fair Labor Standards Act (FLSA) as well as state wage and hour laws, employees have certain rights. You have the right to be paid for all hours worked, including time spent traveling as part of your job, putting on and taking off equipment needed to protect the products you make, breaks of less than 30 minutes, and all other work hours. You also must be paid overtime (time and a half) for all hours worked in excess of 40 in a workweek, unless you meet the very specific criteria to be exempt from overtime. And your employer has to pay at least the legal minimum wage – and can’t make certain deductions that take you below that amount. It seems simple enough, but employers have many ways to pay workers less than they are owed, sometimes much less. Among the top forms of wage theft include: Not paying for travel time that is part of the job. Your regular home-to-work commute is generally not considered work time, but additional travel as part of your work duties generally is. Making employees clock out for short rest breaks, or interrupting unpaid breaks. By law, an unpaid break must be at least 30 uninterrupted minutes during which you are relieved of all work duties. If your employer makes you clock out for breaks of 20 minutes or less, or if they interrupt your unpaid break with work duties, they are committing wage theft. Misclassifying employees as exempt to avoid paying overtime. Misclassifying employees as independent contractors to avoid wage and hour laws (and other employment laws). Paying the tipped minimum wage for non-tipped work. Engaging in pay-to-shift policies – by law, the employee must be paid for their actual hours worked, not necessarily their scheduled shift. How to spot wage theft in action There are a number of steps you can take to catch your employer violating wage and hour laws. Take the following steps to protect your legal rights: Keep track of your own hours worked and compare your records to each paycheck. Discrepancies may indicate that your employer is deliberately under-counting your hours worked. Keep track of your breaks, too. If your employer makes you clock out or deducts a break from your pay, then you should get 30 uninterrupted minutes. If your employer calls you a “manager” or “supervisor” and says you don’t get overtime, take a close look at your actual job duties. Do you spend most of your time managing other employees, or engaging in ordinary work tasks? You may be misclassified. Look closely at your paycheck to ensure you are actually being paid at the correct rate (including time and a half for overtime). Carefully scrutinize any deductions, too, especially if they take you below minimum wage. If something seems off, remember that you have the right to talk to your coworkers about wages (as long as you are a non-management employee). Contact our wage and hour attorneys today If you suspect you are a victim of wage theft, document everything. Then, contact an experienced wage and hour attorney at Nilges Draher LLC. Our legal team has extensive experience and a winning track record in wage theft cases. In one case, we recovered $5.9 million for a class of workers who were misclassified as exempt; in another, we recovered $4.9 million for a class of workers who were not paid for travel time. The sooner you get us on your side, the more effectively we will be able to protect your rights. Give us a call or contact us online today for a free case evaluation. We can help.

The U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance on workplace harassment for the first time in 25 years following a Supreme Court ruling that anti-bias laws protect LGBTQ workers. The guidance notes that refusing to use transgender workers' preferred pronouns and denying them access to bathrooms for their gender identity is a form of unlawful harassment. Additionally, the EEOC says that discrimination against employees for decisions related to abortion or contraception is also considered sex discrimination. Guidance protects LGBTQ and pregnant workers, expands employee rights It's not legally binding, but the guidance outlines how the EEOC will enforce anti-bias laws in the future. The guidance can also be referenced in legal proceedings. “Harassment, both in-person and online, remains a serious issue in America’s workplaces. The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law,” EEOC Chair Charlotte A. Burrows said in a statement. “The guidance incorporates public input from stakeholders across the country, is aligned with our Strategic Enforcement Plan, and will help ensure that individuals understand their workplace rights and responsibilities.” How will the EEOC's new harassment guidelines affect workers? The driving force behind these new guidelines was largely shaped by the landmark Supreme Court decision in Bostock v. Clayton County in 2020. In this ruling, SCOTUS affirmed that harassment of LGBTQ employees constitutes a violation of Title VII civil rights, effectively recognizing sexual orientation and gender identity discrimination as forms of sex discrimination. Furthermore, the EEOC's guidelines extend the scope of sexual harassment to include issues related to pregnancy. Here are key highlights from the new federal workplace harassment guidelines: Expanded protection for LGBTQ+ workers. Concrete examples of workplace LGBTQ harassment now explicitly include intentionally misgendering someone, not using an individual's preferred pronouns, denial of access to gender-appropriate facilities, and harassment based on non-binary or non-conforming gender presentation. Pregnancy-related harassment. The EEOC more clearly states that harassment and discrimination related to pregnancy, childbirth, lactation, contraceptive choices, reproductive medical conditions, and abortion decisions are civil rights violations. Clarifies the scope of religious expression. While employers must accommodate their employees' sincerely held religious beliefs, they must also protect their employees from religiously motivated harassment. Employers are not required to accommodate religious expressions that contribute to a hostile work environment and should take action to correct such situations. Recognizes virtual harassment. As we noted, EEOC workplace harassment guidelines had not been comprehensively updated in about 25 years, so the need to recognize technology's role in workplace harassment was long overdue. The new guidelines note that, especially with the surge in work-from-home and virtual meetings, harassment via virtual communication like email, video conferencing, instant messaging, etc., exists and can rise to the level of a civil rights violation. Is workplace harassment violating your rights? The new guidelines expand protection for many employees and further clarify what it means to work in a safe environment free from discrimination. However, not all instances of harassment rise to the level of a civil rights violation. If you are the victim of workplace harassment, contact an experienced employment law attorney for a free case evaluation. Having a knowledgeable lawyer familiar with state and federal laws regarding workplace harassment can significantly impact your case. At Nilges Draher LLC in Ohio, our experienced worker rights attorneys are well-versed in these laws and can ensure you understand your legal options. We advocate for you with your employer, the EEOC, and other relevant agencies. Contact us for a free case evaluation. We serve clients in Ohio and nationwide.

Federal lawmakers are seeking to repeal rule protecting workers As we've previously covered, the U.S. Department of Labor has been seeking for years to reform the rules governing misclassification of employees as independent contractors. That rule went into effect last month, and federal lawmakers immediately fired back. On March 21, the House Education and Workforce Committee voted 21-13 to approve a resolution that would overturn the new DOL rule. This resolution is now before the full House for consideration, although as Safety + Health reported, it is highly unlikely to pass the Senate. For the time being, then, the Department of Labor rule has the force of law, which has significant implications for workers who may have been misclassified. However, the law in this area is constantly changing, and it's important to have an advocate who knows the lay of the land. What the DOL rule means for workers The Department of Labor rule, which went into effect on March 11, guides the agency's Wage and Hour Division in its determinations of whether a worker is misclassified as an independent contractor for purposes of the Fair Labor Standards Act. Factors that the Wage and Hour Division can consider under this rule include: Whether a worker has the opportunity for profit or loss. Independent contractors are in business for themselves and should have the opportunity to profit from their work. A worker’s financial stake and the nature of any resources they’ve invested in the job. Independent contractors typically obtain and use their own tools and resources. The permanence of the employer-worker relationship. Independent contractors are usually hired for a project or fixed term, whereas employer-employee relationships are usually permanent or indefinite. The amount of control an employer exerts over a worker. Independent contractors should be meaningfully "independent" in how they schedule and approach their work. How essential the worker is to the business. Workers who perform essential, core business functions are more likely to be classified as employees instead of independent contractors. According to the Department of Labor, these factors are more consistent with the ways federal judges are already applying the law, as well as the text and purpose of the Fair Labor Standards Act. Critics have argued that the new rule limits workers' flexibility and ability to control their own work. How misclassification can hurt workers Workers who are classified as independent contractors lose important protections under the Fair Labor Standards Act and other employment laws. In particular, independent contractors are not protected by minimum wage laws. They are not eligible for overtime pay or for pay for certain types of breaks and travel time. Independent contractors also miss out on benefits such as health insurance and workers' compensation. In theory, this is the tradeoff independent contractors make in exchange for greater flexibility and autonomy over their work. However, when workers are misclassified, they get the worst of both worlds: the employer still exercises control over their work, but they don't get the wage and hour protections and other benefits due to employees. The cost for misclassified workers can be substantial. A 2022 Economic Policy Institute analysis of 11 commonly misclassified jobs found significant differences in pay between employees and contractors. For instance, the EPI found that construction workers misclassified as independent contractors would lose out on $16,729 per year in salary and benefits compared to employees, while home health aides would lose an average of $9,529 per year in income and job benefits due to misclassification. Misclassification also has a huge impact on the broader economy. Employers that misclassify workers can cut their payrolls substantially, reducing their labor costs and gaining an unfair competitive advantage over companies that play by the rules. This dynamic drives down wages for everyone, not just misclassified workers. If you think you have been misclassified, we can help Being misclassified as an independent contractor can have a massive effect on your income and your rights as an employee. If you get a 1099 instead of a W-2, but your employer still controls your work and doesn't treat you as meaningfully independent, then you may have a case for violations of the wage and hour laws. Our attorneys have extensive experience getting real results for misclassified workers. Contact Nilges Draher LLC today for a free case evaluation. We can help.

The American workforce is getting older, and unfortunately, that hasn’t brought about the end of age discrimination in employment. AARP survey reveals an alarming trend According to a series of surveys conducted by AARP, about two-thirds of adults over 50 believe older workers face discrimination in the workplace. And that belief is well-founded: according to the Society for Human Resource Management (SHRM), over one-fourth of workers over age 50 have been the target of age-related remarks at work, and nearly one-fifth of HR professionals have received reports of perceived ageism in the workplace. “Ageism is really one of the last acceptable 'isms' that society tolerates,” said Heather Tinsley-Fix, a senior adviser at AARP, per USA Today. That said, the law does not tolerate age discrimination in the workplace, but the law isn’t self-executing; employees need to know their rights and take action to protect them. How age discrimination plays out at work Most employers don’t explicitly discriminate on the basis of age. Rather, age discrimination is usually subtle. Some examples of potential age discrimination include: Advertising positions using proxies for age, such as “recent graduates preferred” or “digital natives wanted.” Asking age-related questions in job interviews, such as “How long have you been in the workforce?” or “When did you graduate from high school?” Denying training or professional development opportunities to older workers because “they’re close to retirement anyway.” Laying off older employees, often because they are higher earners. Using age as a factor when awarding promotions, raises, and prestigious projects. Making age-related comments and remarks at work. Regardless of whether there is intent to discriminate against older workers, employers are responsible for ensuring their work environment is free of unlawful discrimination. That means actively reviewing policies and examining the effects of management decisions to ensure older workers get equal treatment. It also means promptly shutting down any age-related harassment or other unlawful conduct. Is age discrimination against the law? The federal Age Discrimination in Employment Act, which applies to all employers with at least 20 employees, prohibits discrimination in employment against anyone over age 40. Many states, including Ohio, also have laws that contain a similar prohibition on age discrimination. Age discrimination is taking an adverse employment action, such as firing an employee, passing them over for a promotion, reducing their pay, or reassigning them to a less desirable shift on the basis of age. To prove illegal age discrimination, you must show that: You were over 40 when the alleged discrimination occurred, You met your employer’s legitimate job performance expectations, You suffered an adverse employment action, and You would not have suffered the adverse employment action if you were under 40. Your employer can make counterarguments, including arguing that they had another valid (non-age-related) reason for the adverse employment action. At that point, your attorney needs to argue that the offered reason was less likely than age discrimination, or simply that it’s untrue. Talk to an experienced employment law attorney today Again, age discrimination is against the law in most Ohio workplaces. However, it frequently goes unreported and unaddressed. Coming forward to say you were discriminated against is a big step, but it’s necessary to protect your legal rights. We can help. If you are over 40 and believe you have been discriminated against or harassed because of your age, we can protect your rights under federal and state law. Give us a call or contact us online for a free case evaluation with Nilges Draher LLC.

If your civil rights have been violated, you may have recourse. Racial discrimination in hiring is a persistent problem that affects the careers and lives of people of color in Ohio and nationwide. Federal law prohibits employers from taking race into account in hiring decisions, but racial discrimination is often subtle and goes undetected. Unfortunately, the situation is bad enough to force some employees to find workarounds. According to one recent survey, nearly 20% of American workers have changed their names on job applications because of concerns about discrimination, and nearly half of those have changed their name to appear "less ethnic." The same survey found that over one-third of workers have heard potentially discriminatory questions in job interviews. Taking race into account in hiring is unlawful, and if you've been on the receiving end, you do have recourse. However, proving racial discrimination in hiring is difficult. Here's what you need to know. The elements of racial discrimination in the hiring process An unlawful discrimination claim has two elements. First, the victim must be a victim of a protected class, and second, they must suffer an adverse employment action because of their protected status. In the hiring process, examples of adverse employment actions include: Not offering someone a job because of their race. Offering a lesser job title, or lower wages or benefits, on the basis of race. Racial discrimination need not be intentional in order to be unlawful. If an employer deliberately and consciously takes race into account in hiring decisions, that is certainly illegal discrimination. But more subtle policies can also result in an illegal disparate impact on applicants because of their race. For example, screening for "culture fits" can result in hiring mostly people who are the same race as most current employees. What it takes to prove racial discrimination in hiring In some cases, it's possible to prove racial discrimination via direct evidence. Very occasionally, there is a "smoking gun," such as a note from a decision-maker that explicitly mentions race as part of their decision. More often, however, evidence of racial discrimination is somewhat more subtle. For instance, interview questions like "where are you from?" and "no, where are you really from?" may indicate racial bias on the part of an interviewer. Alternatively, it's sometimes possible to prove racial discrimination via evidence of a "disparate impact" on individuals of a certain race. Disparate impacts exist in all aspects of the hiring process, including pre-employment assessments, job advertising, and job interviews. Federal guidelines use the "four-fifths rule:" in general, if a selection process produces a selection rate for a protected group that is less than 80% of the selection rate for the most frequently selected group, then that is most likely an unlawful disparate impact. For instance, if a particular employer selects Black applicants at only 75% the rate at which they hire White applicants, that is likely an unlawful disparate impact. Talk to an experienced racial discrimination attorney about your rights Again, racial discrimination in employment can be difficult to prove. Employers have a great deal of flexibility and discretion in the hiring process, but they cannot break the law. If you have reason to believe you are a victim of discrimination in hiring, talk to an experienced attorney about your rights and options. Contact Nilges Draher LLC today for a free case evaluation.

Despite increased attention and accountability in recent years, workplace sexual harassment remains a pervasive and often underreported problem. In particular, in the medical field, a new study reveals that nearly two-thirds of medical interns have experienced sexual harassment. Sexual harassment is illegal under both federal and state law, but those laws aren’t self-executing. You need to take proactive steps to protect your legal rights. If you have been sexually harassed at work, give us a call or contract us online for a free, confidential case evaluation. We can help. What the study found about sexual harassment at work The study, conducted by researchers at the University of Michigan, Ann Arbor reviewed data from over 2,000 interns from 28 U.S. medical institutions between June 2016 and June 2017. The data showed that overall, 64.7 percent of interns said they experienced sexual harassment. There was a significant gender disparity in the results, as over three-quarters of women (77.2 percent) reported sexual harassment at work, compared to 50.9 percent of male interns. There was also significant variance across institutions and across training specialties. However, across the board, the study authors found that sexual harassment in the field was unacceptably high. What is the legal definition of workplace sexual harassment? Unlawful sexual harassment is behavior of a sexual nature that is severe enough to interfere with an employee’s ability to do their job. Examples include touching, sexual jokes, being shown sexualized imagery, and unwelcome sexual advances. Simple teasing and minor isolated incidents are typically not enough to violate the law (although they may still violate an employer’s policies). There are two categories of legally actionable sexual harassment: Quid pro quo, or “this for that,” involves a request for sexual favors in exchange for a job benefit (promotion, raise, etc.), or a threat of a job detriment (demotion, firing) if the employee doesn’t comply. The harasser must be someone with the power to follow through on the threat (like a manager or supervisor). Because of the power dynamics involved, a single incident is enough to sustain a quid pro quo claim. Hostile work environment, which means the harassment is so frequent or severe that it interferes with the employee’s ability to do their job. The key is the pattern of behavior, rather than an isolated incident. The victim need not be the direct target of the sexual behavior; merely being exposed to an overly sexualized environment at work can be enough to sustain a harassment claim. Note that the definition of sexual harassment is gender-neutral: both the harasser and the victim can be of any gender. Sexual harassment can also occur across any level of the organizational hierarchy. What to do if you believe you have been sexually harassed at work There are a few steps you need to follow if you are a victim of sexual harassment. First, document everything. Remember, most sexual harassment claims are based on a pattern of behavior, so you need to be able to prove the pattern. Write down what happened as soon as possible, and make sure you have names and contact information for witnesses. Second, report the harassment to your employer. This puts them “on notice” that harassment is happening under their watch, so they can’t claim ignorance later. Remember, it is unlawful for an employer to retaliate against you for reporting sexual harassment in good faith. If your employer doesn’t put a stop to the harassment, you can file a claim with the appropriate federal or state agency (such as the EEOC or the Ohio Civil Rights Commission). After going through the agency process, you may be eligible to file a sexual harassment lawsuit. You also need to talk to an attorney. We can listen to your story, explain your legal rights and options, and guide you through the process. Talking to a lawyer isn’t a commitment to file a sexual harassment claim; it’s an opportunity to be heard and get actionable legal advice. Contact Nilges Draher LLC today for a free, confidential case evaluation. We can help.

You deserve to be properly paid for all hours worked For many employees in Ohio and across the nation, the holiday season is also the busy season. Workers in retail, logistics, and related industries often have to work overtime to meet the increased consumer demand. Additional hours should, of course, lead to bigger paychecks, but some employers violate the wage and hour laws and leave employees undercompensated for their work. Our attorneys have extensive experience protecting workers’ rights under wage and hour laws, including addressing violations during the holiday season. If you have not been fairly paid for all hours worked, contact our law firm today. We can help. How wage law violations occur during the holidays Wage theft is a problem 365 days a year, but there are particular manifestations that are more common during the holidays, including: Unpaid or underpaid overtime: Again, the holiday season is the busy season in many workplaces. Employers are required to pay time and a half for all hours worked in excess of 40 in a workweek. For the purposes of wage and hour laws, each week stands alone; your employer can’t smooth out hours across workweeks or pay you in extra paid time off during other weeks. Not paying for all hours worked: Employees often must pick up extra hours during the holidays, either to meet consumer demand or to cover for other employees’ vacations. The law requires employers to pay for all hours worked, regardless of the scheduled shift. That includes time spent completing paperwork, in meetings, taking inventory, and so on. Deducting for breaks not taken: It’s legal for employers to deduct meal breaks of 30 minutes or more from employees’ pay, but only if the employee actually had a 30-minute break in which they were relieved of all work duties. During the holidays, it’s common for employees to work through their breaks. If so, that time should be paid. Unpaid travel time: During the holidays, some employers send employees to different locations to meet shifting demand or to attend seasonal events. Your employer is required to pay you for travel time that exceeds your usual commute, as well as any travel during the workday. This can also put you into overtime territory. Misclassifying workers as independent contractors: The wage and hour laws apply to all workers, including temporary and seasonal workers. However, some temporary workers brought in during the holidays are misclassified as contractors in order to avoid paying overtime and benefits. This is illegal; you’re only an independent contractor if you meet the legal criteria to be classified as a contractor. Not accounting for bonuses and commissions in overtime pay: Many employees receive year-end bonuses, and for employees who are paid commissions, the holidays are often a peak time for commission earnings as well. Remember, your employer is legally required to take your commission or bonus into account when calculating your overtime rate for the week in which you received that bonus or commission. If your rights have been violated, we can help During the holiday busy season, it’s especially important to keep careful track of all hours worked. Don’t rely on your employer’s record-keeping. Make sure you know exactly when you started and ended each workday and whether you spent significant time working outside your usual scheduled hours. That is your time, and you should be paid for it. It’s also important to get legal advice as soon as possible. Talking to a wage law attorney means getting answers about your rights and options. You deserve to be paid fairly for your work. If your employer violated the law, contact Nilges Draher LLC today. We can help.

Federal board rules that employee advocacy for non-employees is protected. American workers have long had the legal right to collectively advocate for themselves on labor law matters, such as better pay and working conditions. However, there have often been disputes on just how far that right to concerted action extends. In a win for employees, the National Labor Relations Board (NLRB) recently ruled that federal labor law protections extend to employee advocacy for non-employees such as interns and job seekers. That means employees are legally protected from retaliation in those situations. If your rights have been violated by your employer, contact an experienced employment law attorney today to find out how we can help. What’s protected by the National Labor Relations Act (NLRA)? The NLRA, passed in 1935, is a foundational statute in United States labor law. The NLRA protects employees who engage in “concerted action” to address labor issues such as pay, benefits, and working conditions. While the NLRA protects labor unions, you don’t have to be part of a union to enjoy the NLRA’s protections. Any sort of concerted action to address labor issues is protected, including but not limited to: Speaking up with a group of coworkers about labor issues, such as unfair pay practices or unlawful harassment. This includes raising concerns with your employer, an appropriate government agency such as the EEOC or NLRB, or the media. Communicating with your coworkers about pay, benefits, and working conditions, inside or outside the workplace. (This means, for example, that if your employer has a policy saying you can’t talk about your pay, that policy is unenforceable.) Circulating petitions, information about unionization, or any other materials meant to rally collective support on a labor-related issue. Making preparations for labor-related concerted activity—even as an individual employee. Remember, though, that the NLRA’s protections are specifically for advocating for labor issues like pay and working conditions. If you speak out about problems with your employer’s products or services, for instance, that sort of advocacy is typically not protected by the NLRA (although it may be protected by other laws). The new NLRB decision protects employee advocacy for non-employees in the workplace The NLRB’s recent decision concerned the American Federation for Children (AFC), a nonprofit organization that advocates for school choice. AFC allegedly pushed an employee named Sarah Raybon to resign after she suggested that her boss’s reluctance to re-hire a Hispanic former coworker was motivated by race. Raybon also attempted to rally coworkers in support of bringing back their former colleague. In a 3-1 ruling, the NLRB determined that because the former coworker had applied to get her previous job back, she counted as an “employee” for labor law purposes. This means Raybon’s advocacy was protected concerted activity on behalf of a fellow employee. However, the NLRB took that decision a step further, determining that even if the former colleague were not an employee, Raybon’s activities would still be protected by the NLRA on the grounds that she was advocating for the "mutual aid and protection" of AFC's workforce. This decision has significant implications for all sorts of employee advocacy for non-employees, including not only job seekers but also interns, contractors, and so on. It also speaks to a broader legal reality: if you raise concerns about pay and working conditions at your job, you have legal protection against retaliation, and if your employer violates those rights, you have recourse. Talk to an experienced employment law attorney today However, to protect your legal rights, you need an experienced advocate in your corner. Federal labor and employment laws are complex, and whether a particular provision applies in your specific case is a highly fact-specific matter. An experienced employment lawyer can investigate your situation, explain your options, and advocate for your rights every step of the way. If you believe you have been retaliated against for speaking up about a labor issue, or if your employer has violated any of your legal rights, contact us online to schedule a free case evaluation with Nilges Draher LLC. Our conversation is confidential and there is no obligation to hire us, just answers about your options.

The past several years have seen numerous legal and practical changes in the area of workplace harassment. The federal agency that investigates harassment claims is now proposing new guidance to clarify employees' rights and employers' responsibilities. Last month, the Equal Employment Opportunity Commission (EEOC) announced new proposed guidelines for employers regarding illegal workplace harassment. The EEOC previously announced new guidelines in 2017, but they were never adopted. As changing workplaces grapple with new challenges and patterns of behavior, it's important for employees to know their rights. If you believe you are a victim of unlawful harassment at work, contact Nilges Draher LLC today. We can help. What's the definition of workplace harassment? While the new guidelines are a significant step, the basic definition of unlawful harassment has not changed. Harassment includes: Unwelcome conduct based on a protected characteristic such as sex, race, color, religion, pregnancy, disability, age (over 40), or national origin, and either: Enduring the offensive conduct becomes a condition of continued employment (quid pro quo), or The offensive conduct is so severe and pervasive to create an intimidating, hostile, or abusive work environment. Typically, harassment claims are based on a pattern of behavior, although single incidents can rise to the level of harassment if they are particularly egregious. Unlawful harassment can be committed by anyone in the workplace: supervisors, coworkers, contractors, and non-employees, such as customers and vendors. Moreover, you don't have to be the direct target of harassing behavior to have a claim; anyone who is affected by unlawful harassment in the workplace has legal recourse. How would the new guidelines affect harassment cases? The new guidelines aren't a change to the baseline definition of harassment but rather a clarification of how recent changes in the law and the workplace have affected the enforcement of harassment claims. Specifically, the new guidelines: Address the effects of Bostock: In Bostock v. Clayton County, the Supreme Court found that sexual orientation and gender identity are legally protected characteristics. The new guidelines clarify that harassment on the basis of sexual orientation or gender identity is unlawful. Take into account social media and digital technology: The new guidelines address the proliferation of digital technology and digital harassment to explain how online content can contribute to hostile work environments. Provide updated examples to address scenarios: With the post-COVID rise of remote and hybrid workplaces, the forms of harassment that can affect employees have changed. The EEOC's new guidelines would provide additional examples that apply to contemporary workplaces. Again, the new guidelines are not themselves new law; they reflect changes in the law and in circumstances that have already happened. However, they would put employers on notice about their responsibilities and advise employees of their legal rights. What to do if you are a victim of unlawful harassment There are a few immediate steps to take if you believe you are a victim of illegal harassment in the workplace. First, make sure you get documentation – write down notes on what happened, talk to witnesses, and so on. Since harassment claims are usually based on a pattern of repeated behavior, being able to document that pattern is critical. Second, report the harassment to your employer. If your employer has a protocol for reporting harassment, use it; if not, talk to your supervisor (or their supervisor if your supervisor is the one perpetrating the harassment), or to human resources. Get this report in writing so your employer can't claim ignorance later. Remember, you are legally protected from retaliation for reporting what you believe to be unlawful harassment in good faith. It's also important to talk to an experienced employment law attorney about your rights and options – even if you haven't reported the harassment to your employer yet. We can guide you through this process and protect your rights, whether that means advising you "behind the scenes" or litigating on your behalf. Talking to a lawyer isn't a commitment to taking legal action; it's a chance to tell your story and learn about your options. If you are a victim of illegal harassment at work, contact Nilges Draher LLC for a free case evaluation. We can help.

A proposed Department of Labor (DOL) rule could dramatically impact the number of workers who currently qualify as exempt employees, if it goes into effect as planned. The federal agency announced on August 30 a proposed rulemaking that would raise the salary threshold to qualify for the "white-collar exemption" from $684 to $1,059 weekly, or from $35,568 to $55,068 annually. This would mean current exempt employees who make more than $35,568 but less than $55,068 per year would no longer qualify as exempt under the new rule. According to DOL, this change could affect 3.6 million salaried workers nationwide. The proposed rule would also increase the threshold for "highly compensated employees" to $143,988 from $107,432. And it would build in an automatic increase in the threshold every three years. What are the white-collar exemptions? Employees who are categorized as exempt under the Fair Labor Standards Act (FLSA) are not eligible to receive overtime pay (time and a half) for hours worked in excess of 40 in a workweek. Most, though not all, exempt employees fall under one of the three "white-collar exemptions." In addition to earning at least the required salary threshold, employees' job duties must fall into one of these categories to qualify for the exemption: Executive exemption: managers who have hiring, firing, and evaluation power, or similar decision-making authority. This exemption is based on job duties, not job title; a nominal "manager" who spends most of their time doing ordinary work tasks instead of management tasks is not considered exempt. Learned professional exemption: employees who work in a field of science or learning, perform largely intellectual work that requires constant exercise of discretion, and typically acquire their knowledge through a prolonged course of specialized instruction. Examples of employees in this category include scientists, engineers, physicians, attorneys, and architects. Administrative exemption: employees whose work keeps the business itself up and running, and who are authorized to make important decisions. Examples of jobs in this category include finance, legal compliance, public relations, and database administration, although this is highly contextual depending on the type of employer. The new rule would not change the types of jobs that qualify for the exemption. It would only raise the minimum salary for workers with those job duties to be treated as exempt. What does the new rule mean for white-collar workers? Under the new proposed rule, employees who fall into one of the three categories listed above and currently make more than $35,568 but less than $55,068 would no longer qualify as exempt. At that point, employers would have two options: they can start treating those workers as non-exempt, which means they will have to start paying overtime, or they can increase salaries over the new threshold. Either way, this is a win for workers. While there is a somewhat common perception that being exempt means you have greater responsibility and opportunities for advancement, the reality is that being exempt means your employer can get extra work for no extra pay. In theory, the upside for the employee is greater flexibility, but in practice, that flexibility often only comes into play when it benefits the employer. What to do if your rights under the FLSA are violated Our firm is closely monitoring this new rule and stands ready to protect employees if their rights are violated. If you have any reason to believe your employer has violated your rights under the Fair Labor Standards Act or another wage and hour law, give us a call or contact us online for a free consultation with the wage law attorneys at Nilges Draher LLC. We can help.