At Tobin O’Connor Concino P.C., our attorneys work closely with a wide variety of employers, including private businesses, teaching hospitals, non-profit entities, and other professional practices, to help reduce the risk of employee claims and lawsuits.

Here is a look at some of the more common types of claims and lawsuits companies may face from current and/or former employees.

Discrimination

A discrimination lawsuit is filed when an employee feels that his or her employer engaged in some type of illegal discriminatory behavior. Discrimination-based lawsuits can result from actions based on a variety of factors, including religion, race, gender association, nationality, sex, age, or disability.

It’s not uncommon to see a discrimination suit filed after an employee has been terminated due to poor performance or was passed up for a promotion he or she thought they deserved. In many cases, the employee is angry and sees discriminatory behavior when there is not any to start with. If you or one of your supervisory team members is terminating someone or is passing on an employee for a promotion, document everything in their employment file in the event they come back later claiming discrimination.

Harassment

Harassment is another source of employee lawsuits against their employer. The harassment can come from a co-worker or a boss. In these situations, the company can be held liable as well if the harassment can be proven. Harassment lawsuits are not only borne out of possible sexual harassment, but also from inappropriate racial jokes, bullying, overt hostility, etc.

Wrongful Termination

When an employee feels they were terminated for an inappropriate reason, you’re likely to be on the receiving end of a wrongful termination lawsuit. Like with any other aspect of employee relations, it’s important to keep thorough records on all aspects leading up to a termination. If you had been documenting the employee’s poor performance for the past six months, it’s a lot harder for the former employee to claim they were fired for discrimination, retaliation, etc.

Wage and Overtime Claims

Failure to pay the proper wage and earned overtime pretty much guarantees your employee will be filing a claim against you for back-owed wages and/or overtime. You must have employees classified correctly as well. Just because you want to put someone on salary, it doesn’t mean current labor laws allow you to classify the person as exempt in order to avoid paying overtime. This is one of the areas where a Washington DC employment and labor law attorney can certainly help.

Contact a District of Columbia Labor Law and Employment Attorney

If you need assistance with your existing business, or you are starting a company, let us help ensure all your policies and procedures are in compliance with current laws. Contact Tobin O’Connor Concino P.C. today to schedule an initial consultation.

https://www.tobinoconnor.com/when-washington-dc-employers-are-responsible-for-independent-contract-actions/

Don’t Misclassify Independent Contractors

One of the quickest ways to get in trouble with independent contractors is to misclassify them. It’s understandable that employers prefer to hire independent contractors over employees as it means they aren’t responsible for benefits. However, misclassifying someone can land your business in hot water. A failure to properly classify someone can also result in possible penalties. If you misclassify someone and wind up owing taxes, you could be penalized for the failure to pay taxes on the person that should have been an employee.

Vicarious Liability

There are some situations where an employer might be liable for an independent contractor’s actions — primarily when there is a direct connection with other criminal or civil liabilities and penalties. This may involve anything from a negligent act to an omission committed by the independent contractor.

Liability doesn’t typically exist unless the job is inherently dangerous. One example is construction, where the independent contractor must perform their job with specific safety equipment. Some jobs may have an increased risk of injury despite safety items available. The riskier the situations are, the greater the chance that the company will be liable for any injury to the worker.

If you are unsure what inherently dangerous activity is, it can include handling hazardous materials, working with wild animals, or working with explosives. The need for someone with specialized experience is why many companies hire independent contractors.

Washington DC Unemployment Insurance Laws

Someone who is an independent contractor is not covered under the DC unemployment insurance law. In the event you misclassify an independent contractor, you would be liable to pay unemployment taxes on the employee’s wages. When determining whether someone is an independent contractor or employee, the Department of Employment Services looks at the following questions:

• How is the person being compensated?
• Who has the right to supervise how the intermediate work should be completed?
• Is the person who is providing the independent contractor services engaged in an independent occupation, business, trade, or profession?

What this means is that if you have misclassified someone and haven’t registered with the Department of Employment Services, and you are determined to be a liable employer and you will be responsible for back taxes, plus penalties and interest.

Contact a Washington DC Employment Lawyer

If you have questions on what you could be liable for regarding independent contractors you have hired, or are considering hiring, it’s important to speak with a Washington DC labor and employment law attorney. Contact Tobin O’Connor Concino P.C. today to schedule an initial consultation.

https://www.tobinoconnor.com/understanding-differences-between-employees-and-independent-contractors-in-washington-dc/

Independent Contractors Are Their Own Businesses

An independent contractor runs their own business. It may be a sole proprietorship or a corporation. They specialize in providing specific services and work for multiple clients. You cannot run the risk of treating them like an employee, as that is what puts you at risk for misclassifying them. Independent contractors should be treated like any other business-to-business relationship.

Independent Contractors Market to Clients

When someone is your employee, they are working for your company. Independent contractors have their own businesses, and that means they are typically always looking for new clients. Even if they have a long-term contract with your business, it doesn’t mean they aren’t working with other clients as well.

Independent Contractors Submit Invoices

Employees are paid for the hours they work while they are at your business. An independent contractor has to submit an invoice and do their own books to ensure they get paid. This is not an automatic salary they receive.

Independent Contractors Don’t Get Employee Benefits

Employers like to hire independent contractors because they are not on the payroll, and that means no benefits either. Companies save money by hiring independent contractors because they aren’t paying health insurance, vacation days, stock options, contributing to retirement plans, etc. However, this is why classifying employees is so important. You cannot hire someone as an independent contractor and treat them like an employee in hopes of getting away with not paying benefits. This could open you up to legal issues.

Independent Contractors Handle Their Own Taxes

Because independent contractors run their own businesses, they also pay all their own taxes. They aren’t on your payroll, so you aren’t paying benefits and related employment taxes for them. Instead, you may have them complete a W-9 to get their Tax Identification Number, or TIN. And then you’ll issue a 1099-MISC to ensure payments made to them are reported to the IRS.

Independent Contractors Choose When and Where to Work

Employees don’t have the option to choose when and where to work in most cases. Independent contractors make their own hours and choose their work environment. They aren’t responsible for working a certain number of hours, they are responsible for getting the work done and fulfilling the agreement.

Independent Contracts Often Sublet Work

Depending on the type of work and the industry, it’s not uncommon for independent contractors to delegate tasks or use subcontractors to help them. An employee doesn’t have the ability to hire someone else to assist their duties on an as-needed basis.

Contact a Washington DC Employment and Labor Law Attorney

If you have questions on classifying a new hire as an employee versus an independent contractor, speaking with a Washington DC employment law attorney can help. Contact Tobin O’Connor Concino P.C. today to schedule an initial consultation.

https://www.tobinoconnor.com/common-legal-problems-with-washington-dc-employment-contracts/

Here is a look at some of the common problems that can develop with employment contracts.

Contract is Out of Date

Employment laws can change, and that means you could be at risk for the contract being outdated. This does nothing to help protect the existing employment relationship and can wind up doing more harm than good if the paperwork doesn’t comply with the most up-to-date employment laws.

No Contract

There are employment situations where not having a contract can be rather harmful and can lead to additional problems if the terms of the employment are not outlined in writing. This can create confusion on both sides and ultimately result in legal issues if they are not clarified.

Contract is Too Long-Winded

Some employers assume longer is better. You don’t need to use 1,000 words to say what would suffice in 200. There is a misbelief that the more words you have, the better protected you are. This is not always the case. Making a contract too wordy could render the contract contradictory in some spots, or it can become unclear.

Vague Language

Sometimes you have the opposite of a long-winded contract — one that is too short and vague. Usage of vague language can increase the risk of legal problems with an employment contract. Each person who reads a passage may interpret it differently.

Making Changes in the Future

Employers have to be mindful of making changes down the line, as any business changes could wind up being contradictory to the terms of outstanding employment contracts you have with employees. This could put you in breach of a contract and give an employee grounds to bring a lawsuit. You need to get your employee to agree to any changes you make through renegotiations. If they do not want to agree, it is within their rights to reject those changes.

Invalid Contract Terms

If you have an employment contract drafted without the assistance of a Washington DC employment law attorney, you could set yourself up to have invalid terms from the start. If that happens, the contract would not be upheld in court in most cases. Depending on what aspects of the contract are invalid, a judge could rule the entire contract is invalid, or just select portions.

Contact a Washington DC Employment Law Attorney

Many of these problems lead to one main issue — enforceability. If you have a poorly drafted contract, it will be hard to get a court to enforce it. It is pointless to draw up an employment contract that won’t be enforceable in the long run. Contact the knowledgeable team of labor and employment law attorneys at Tobin O’Connor Concino P.C. today at 202-362-5900 to schedule an initial consultation.

https://www.tobinoconnor.com/overview-of-washington-dc-workers-compensation-laws/

The Department of Employment Services (DOES) is the agency responsible for handling workers’ compensation benefits for private-sector employees. All employers who have at least one employee who is not a business owner are required to carry workers’ compensation insurance. The law allows you to file for self-insurance which must be approved by DOES.

Sole proprietorships and partnerships can cover themselves for workers’ compensation, but it not a legal requirement. If you are a homeowner with a domestic worker who averages more than 240 hours during a calendar quarter in the same or previous year is also required to have workers’ compensation coverage.

Employees who are Eligible for Benefits

Workers’ compensation benefits will cover your employees for all illnesses and injuries that happen during the course of their job duties. This can include injuries sustained while doing normal duties as well as work errands. Any injury that occurs while they are off-duty are not covered. For example, someone who is injured on their lunch break while at a restaurant or driving home from work would not be covered.

Traumatic injuries are occupational illnesses are both covered by workers’ compensation benefits. A traumatic injury would be one where your employee had a slip and fall accident whereas an occupational illness is something that develops over time. It could be a repetitive motion injury or an illness that can be linked to exposure to harmful substances or chemicals on the job site.

Federal employees are subject to different regulations in regard to workers’ compensation coverage and independent contractors in the District of Columbia have no coverage at all.

Time Limits for Benefits

Employees are required to report their injuries to you within 30 days of the injury or within 30 days of learning that the injury is related to work. Once you receive the notice, you are required to file an Employer’s First Report of Injury or Occupational Disease within 10 days.

Claim Denials

If you or your workers’ compensation carrier deny an employee’s claim, be advised the employee has the right to appeal. The appeal starts when the employee files an Application for Formal Hearing. The Administrative Hearings Division will set a hearing date in front of a workers’ compensation judge who will render their decision. If the employee disagrees with the decision, they may file another appeal with the Workers’ Compensation Board.

Retaining a Washington DC Employment Law Attorney

If you run a business and have questions on workers’ compensation or any other employment and labor law topics, contact the team at Tobin O’Connor Concino P.C. at 202-362-5900 to schedule a consultation.

Resource:

does.dc.gov/page/workers-compensation-does

Knowing federal and state employment and labor laws is important. This is why it’s critical to have a Washington DC employment and labor law attorney on retainer. Your attorney can review your human resources manuals, company policies, and advise you on the areas where you could run into trouble with your hiring and firing practices.

Wrongful termination also includes employees who feel they were discriminated against, which may involve covered federal protections until Title VII and other related laws. You cannot fire someone because of their sex, race, age, religion, national origin, sexual orientation, or disability, for example. If you fire someone who has presented a lawful whistleblower claim in connection with potential unlawful or fraudulent activity, there may be separate protections available to whistleblowers.

There are some situations where an employee may feel they were wrongfully terminated, but it does not fall under the federal or local protections. You have a right to let someone go who you believe made a mistake on their job, or perhaps you do not get along with the employee and they do not fit well within the department. As long as those terminations were based on the wrongdoing or attitude problem rather than based on discriminatory practices, you should not be at risk.

What Remedies do Wrongfully Terminated Employees Have?

If you have a former employee who is claiming wrongful termination, you need to know what potential risks you are facing. Some of the remedies afforded to wrongfully terminated employees include:

• Reinstatement of position
• Reinstatement of seniority and benefits
• Compensation for emotional stress
• Back pay
• Mandatory HR policy changes to protect other employees
• Attorney’s fees and court costs
• Potential punitive damages in some cases to keep an employer from engaging in this behavior again

As the employer, you are also subject to potential penalties resulting from your failure to abide by federal and/or state employment standards. Some of these may include:

• Garnishment — if you discriminate based on child support withholding, which can include not responding to garnishment requests within 90 days, you could be fined up to $10,000 which would be paid to the employee to cover child support payments.
• Jury duty ­— Not allowing someone to attend jury duty could result in a criminal contempt of court with a fine of up to $300 and/or 30 days in jail for the first offense. The second offense rises to up to a $5,000 fine and/or 180 days in jail, and you’re liable to the employee for their lost wages, reinstatement of their job, and any attorney’s fees.
• Whistleblower — If you fired someone in retaliation for being a whistleblower, they can file a civil suit against you within a one-year statute of limitations.
  

Contact a Washington DC Employment Law Attorney

If you have a business in the Washington DC area, contact the knowledgeable employment law attorneys at Tobin O’Connor Concino P.C. at 202-362-5900 to schedule a consultation.

Resource:

eeoc.gov/laws/statutes/titlevii.cfm

Off-the-Clock Overtime Claims

The hardest claims to defend are “off-the-clock” overtime claims, which are ones where an employee was off the clock and didn’t report the hours, sometimes claiming fear that they would be reprimanded by their supervisor. Sometimes an employee will make these claims months, or even years, after the alleged work took place. Rather than wait for someone to bring a claim and try to defend it, you can also take proactive steps to try and mitigate any potential risk.

Important Topics to Address

In order to reduce the number of unpaid wage claims presented, there are some factors you can address in your employment handbooks, HR policies, new hire orientation, etc. These include:

• Clearly explain your overtime policy during new hire orientation. Non-exempt employees should sign a form acknowledging they understand the policies in place.
• Review all job descriptions to verify that employees are properly categorized (non-exempt versus exempt).
• Train your management staff on circumstances where overtime may be appropriate and what the process is for approving it.
• Update your current overtime policy so that is clearly references when non-exempt employees can work remotely, at home, or anywhere else outside of the office, as a way to reduce any “off-the-clock” overtime claims.
• Use timesheet certifications or other methods that track clocking in and clocking out.
• Be proactive in monitoring the amount of overtime your non-exempt employees are working.
• Update your company’s handbook to reflect the proper procedure for reporting hours, how overtime is managed, and confirm that employees understand that no manager has the authority to tell them not to record any and all hours worked.
• Review your current Employment Practices Liability Insurance, or EPLI, policies to verify what coverage, if any, exists for overtime claims, including defense costs, indemnity, settlement, etc.
• If you believe overtime was worked, you should compensate a non-exempt employee for their time. However, it’s important to discuss overtime policies with them and what steps need to be taken the next time before any overtime will be approved.

Compensating Non-Exempt Employees

Employees who are non-exempt are entitled to be paid for the hours they work. But, it’s also important they are following all policies and procedures regarding when and how overtime is authorized. If working at home is authorized, they need to have a clear understanding of when that is approved and how they report the hours. As the employer, you should not be in the position of trying to prove something like off-the-clock hours did not happen. Educating employees and your management team can go a long way in reducing the risk of these types of wage claims.

Retaining a Washington DC Employment Law Attorney

If your company is facing an unpaid wage or “off-the-clock” overtime claim, it’s important to retain a knowledgeable Washington DC employment and labor law attorney. At Tobin O’Connor Concino P.C., we specialize in these types of claims. We can also help you before a claim is presented by making sure your policies and handbook comply with all applicable laws. Contact our office at 202-362-5900 to schedule a consultation.

If an employee feels you’ve discriminated against them for any of these reasons, they can file what’s known as a Charge of Discrimination. This is a signed statement that says you engaged in discriminatory practices and requests the EEOC to take immediate action.

Employees must file a Charge of Discrimination prior to proceeding with a job discrimination lawsuit against you. In addition, states and local jurisdictions have their own Fair Employment Practices Agencies that enforce employment-related anti-discriminatory laws. If an employee files with a local FEPA, it will also be filed with the EEOC if federal laws are applicable.

EEOC Investigation

It does not matter whether the employee’s complaint has any merit, but you will be investing both time and money dealing with the issue. You will receive notice from the EEOC who will ask for your statement of position, which is essentially your version of the details. There will be a formal request for you to supply relevant information and documents, like personnel files and HR documents. EEOC staff may visit your business, and even ask to interview other employees.

If the case proceeds into formal litigation, you will incur costs along the way. If you opt to settle through mediation or settlement, you are likely paying out money to the employees who complained, or at least altering policies and/or procedures. Employers can compensate employees without admitting liability, and the settlement agreement can remain confidential.

It’s important to understand the EEOC can deny your request for mediation if they feel the matter is too serious. It can sue you, and if they don’t sue, the employee who filed the complaint still has the right to sue.

Penalties

You may have penalties in connection with EEOC claims. These can include paying back wages, promoting them, reinstating their jobs, etc. It will depend on the subject matter of the complaint. You can even be held responsible for the employee’s legal expenses, and the award can be much higher if the case proceeds through litigation. Courts have the right to award compensatory and punitive damages. There is a cap on damages, which is based on the number of employees you have. Cases that involve sexual or age discrimination are limited in damages to the amount that is equal to their lost wages.

Retaining a Washington DC Business Litigation Attorney

Having an employee bring an EEOC claim against you can seem scary. Retaining a Washington DC business litigation attorney who has experience with employment law matters is key. You need someone who understands how these cases work and can help protect your business’s interests. At Tobin O’Connor Concino P.C., we have experience in all areas of business litigation, including complex EEOC discrimination claims. Contact our office at 202-362-5900 to schedule a consultation.

The duration of the non-compete clause can vary, lasting anywhere from a few months to several years. Because of the limiting nature of a non-compete agreement, many employers are no longer using them. However, there are some instances where they might apply to your business in Washington, DC, so it’s good to familiarize yourself with the basics.

General Law 

The District of Columbia doesn’t have a specific statute that addresses non-compete agreements, but DC Code Section 28-4502 does prohibit any contractual agreement that unreasonably restrains trade. Courts may enforce the restrictions on competition if the restraint is reasonable and related to the employee-employer relationship. It must be necessary to protect the employer company’s interests, and it can’t be wider in scope or longer in duration than necessary, and you cannot have anything in the agreement that goes against public policy. Lastly, there has to be some type of consideration.

What to Focus on in Drafting a Non-Compete Agreement

The law puts the burden of proof on the employer, who must prove that the non-compete agreement doesn’t unreasonably restrict trade. If you feel it’s necessary to draft one, then it’s important to focus on key areas to maximize your chances of it being enforceable in court. Also, having a Washington, DC business law attorney draft the non-compete agreement is important to ensure it hits all the important topics while not violating any public policy.

The four areas the non-compete agreement should focus on include:

• Purpose — Why is the non-compete agreement necessary? What are the employer’s interests and concerns, and are they legitimate?
• Benefit — What is the benefit for the employee who signs this? It can vary based on what point in the employment process the agreement is drafted. At the start, it might be the job offer, or at the end of employment, it might be a severance package.
• Scope — The scope of the agreement needs to be defined. This might include a requirement to keep proprietary information private, describe the type of competitors the employee is not allowed to work for or the type of work he or she is forbidden to do, etc.
• Enforcement — It’s important to look over the agreement to ascertain whether a court might enforce it or whether it’s unreasonably restrictive.
  

Retaining a District of Columbia Business Law Attorney

If you need a non-compete agreement drafted, you need to retain a District of Columbia business law attorney who has experience with employment law as well. The team at Tobin O’Connor Concino P.C. is skilled at all aspects of business and employment law. Contact our office online or call us 202-362-5900 to schedule a consultation.

If you run a business, it’s imperative to understand applicable employment laws and have a skilled Washington, DC wrongful termination lawyer who can verify that you follow all federal and state laws, thereby reducing the risk of future litigation.

Elements of a wrongful discharge claim must meet some criteria, such as the discharged person was an employee of the business, he or she was fired or received some other type of disciplinary employment action, and the employee’s protected conduct was the primary reason the employer opted to take disciplinary action.

Wrongful Discharge in District of Columbia

Employers cannot discriminate against an employee based on a variety of factors:

• Race
• Disability
• Age
• Sex
• National origin
• Sexual orientation

These are all protected under federal and state laws that specifically prohibit an employer from taking action against an employee for one of the aforementioned reasons. This can include termination, suspension, demotion, or other disciplinary action.

An employee who was wrongfully discharged could receive compensation for lost earnings and benefits, as well as pain and suffering. In select cases, a judge may award punitive damages against the employer.

Washington, DC wrongful discharge laws prohibit an employer from punishing an employee for his or her conduct that is protected by public policy. This might be something like going to jury duty, filing a workers’ compensation claim, or providing testimony in court under a subpoena. Essentially, the law prohibits an employer from firing an employee because the employee:

• Contacted an authority to report a problem;
• Exercised rights under specific laws; or
• Refused to violate a law.

Depending on the circumstances, employees who are fired because they refuse to take part in illegal or fraudulent practices may have protection under the whistleblower laws.

Whistleblower Protections

Employees who have information that supports a claim of an employer violating laws or causing danger to public safety and health have an obligation to report it. This makes them a whistleblower. There are a number of federal and state laws that protect whistleblowers from retaliation. If you fire an employee because they came forward, they may have a valid claim against you.

Retaining a Washington, DC Employment Law Attorney

If you are facing a wrongful termination claim, it’s imperative you seek out a skilled Washington, DC employment law attorney. Defending a wrongful discharge claim can be complex, and having an experienced attorney can make a huge difference. Tobin O’Connor Concino P.C. represents clients facing wrongful termination claims at both the federal and state level. We handle claims in neighboring Maryland and Virginia as well. Contact our office online or call 202-362-5900 to schedule a 30-minute consultation.