Employment Laws Frequently Asked Questions (FAQ)

If you signed an arbitration agreement with your employer, it is a contractual agreement between you and your employer stating that you agree not to litigate any potential legal claims against the employer in state or federal court, but instead go through arbitration. Arbitration is a watered-down version of federal litigation with many disadvantages to the employee. For example, while the Federal Rules of Civil Procedure allow up to ten depositions per side, your arbitration agreement or the applicable arbitration rules may only permit one to two depositions per side. Arbitration rules usually limit written discovery and document production and you lose your right to a jury trial. Instead, your case is tried in front of an arbitrator.

An arbitrator is an attorney or former judge certified in arbitration. Unfortunately, the arbitrator may have no or limited experience in the type of law applicable to your case unlike a federal judge. And, most arbitration agreements have a confidentiality provision making the entire case and proceedings confidential. Keeping the case quiet benefits the company because employees do not learn about other employees seeking redress to which they may also be entitled. It also protects the company from media attention. And, at the end of the arbitration hearing (trial), if you lose, you may not have a right to appeal the decision.

Not all arbitration agreements are valid, however. The attorneys at Martin & Martin have successfully fought for the federal court to find some arbitration agreements invalid which permitted the employees to proceed with their legal claim in federal court.

Almost all employers that use arbitration agreements do not give their employees the option not to sign them. Either the employee/candidate for employment signs the arbitration agreement or they are terminated or not hired. However, some employers do provide employees with an optional arbitration agreement in exchange for an offer of additional financial benefit where the employee can choose not to sign the agreement without any harm. If your employer makes you this offer, it would likely be highly advantageous for you to speak with a lawyer prior to signing the agreement.

It depends on what type of case you have. Cases alleging violations of Title VII, the ADA, and/or the ADEA require that you file a Charge of Discrimination with the EEOC within 180 days of the adverse employment action. Once the EEOC issues a Notice of Right to Sue, you have 90 days to file a lawsuit in federal courts. For cases involving the FMLA, you have two years from the date of the adverse employment action to file a lawsuit in federal court.

It depends on the statute of limitations. If the statute of limitations ends in a very short amount of time, you may need to file the EEOC Charge of Discrimination on your own while you speak with and retain an attorney. However, in order to meet the statute of limitations, you need to file an actual Charge – not just speak or meet with the EEOC. If you have time remaining before the deadline, then you can discuss with potential attorneys whether they will file the Charge on your behalf if they are retained or whether they want you to file the Charge.

Keep in mind that speaking with attorneys to retain one to represent you does not change the statute of limitations. You are responsible for filing the Charge until and unless you retain an attorney to handle your case and your attorney has agreed to file the Charge on your behalf. And, even in that scenario, you should calculate the filing deadline and work with your attorney to file the Charge well in advance of that deadline.

At Martin & Martin, if we accept a case, and a Charge has not yet been filed, we may tell our new client that we will draft the Charge on their behalf for their signature and then we file it with the EEOC while informing the EEOC that we represent you. In some cases, we tell potential clients to contact us after they file their Charge. This ensures that the Charge deadline is met and we then have time to evaluate whether we will handle the matter. Either way, it is important for you to know the deadline and work to ensure that this deadline is not missed. Under no circumstances should you assume that an attorney is meeting this deadline on your behalf. You need clear, direct communication with your attorney about who is responsible for filing the Charge. To learn more about EEOC Charges of Discrimination.

The EEOC is responsible for investigating claims of discrimination and retaliation of employees by their employers. Once an employee files a Charge of Discrimination, the EEOC sends a notice to the employer requesting that it file a response called a Statement of Position. The EEOC may also request documents from the employer and speak with witnesses. The EEOC also offers mediation services to assist the employee and employer in resolving the claims. Upon completion of the investigation, the EEOC will issue a Notice of Right to Sue stating that the employee has 90 days in which to file a federal lawsuit. The EEOC may also make a determination that the employer violated a federal employment law.

Unfortunately, the EEOC is overwhelmed with an enormous case load. This means that investigations can take many months up to several years. However, an employee can request that the EEOC issue the Notice of Right to Sue and end the investigation. This permits the employee to file their lawsuit in federal court without waiting for the EEOC to conclude their investigation. Because any determination made by the EEOC or findings made from the investigation are not binding in the federal court case, it does not harm the employee’s case to request a Notice of Right to Sue to end the EEOC’s investigation and permit the employee to head to federal court.

Once you receive your Notice of Right to Sue from the EEOC, you should read it carefully. You only have 90 days to file your federal employment law lawsuit. You cannot miss this deadline. Therefore, upon receipt of the EEOC’s Notice, you should immediately contact employment law attorneys to find one to handle your case.

The type of damages available to you depends on the particular statute. However, in federal employment cases, damages can include:

• Lost wages & Employee Benefits
• Future Lost Wages
• Liquidated Damages aka Double Damages
• Compensatory Damages
• Punitive Damages
• Attorney’s Fees and Litigation Costs

Mediation is the process by which the parties participate, voluntarily, whereby an independent attorney or judge serves as a mediator and assists the parties in attempting to resolve the case. Typically, the employee and their attorney are in one room while the employer and its attorney are in another room. The mediator goes back and forth between the rooms relaying settlement offers between the parties as well as discussing specific aspects of the case, including the risks to the parties of not settling the case.

Mediation is not binding. Either party may decline the settlement offer of the other party and continue litigating the case where it left off prior to mediation.

This is, by far, one of the most asked questions that the employment law attorneys at Martin & Martin receive. Georgia is an at-will employment state. This means that a Georgia employer may terminate and employee for a good reason, bad reason, or no reason at all. A wrongful termination, however, is different. Although a Georgia employer is permitted to terminate an employee whenever they like, they must still abide by federal employment laws. These laws protect employees from being terminated on the basis of a protected class or in retaliation of a complaint about a violation of a federal employment law. The laws also protect employees who request leave or accommodations.

An unlawful or wrongful termination is a termination that violates one of the federal employment laws. To learn more about wrongful termination.

An illegal hostile work environment is an environment filled with discrimination in violation of one of the federal employment laws. For example, a hostile work environment on the basis of race is a work environment in which the employee is forced to suffer through comments and actions on the basis of race, e.g., racial slurs, derogatory comments about race, cartoons or pictures offensive to one race, etc. A sexual harassment hostile work environment is one in which an employee is forced to work whereby other employees engage in harassing actions and/or make comments that are on the basis of one’s sex or are offensive to one’s sex, e.g., sharing pornographic materials among employees, offensively touching an employee, making comments about an employee’s body or sex life, etc. The term sexual harassment includes harassment on the basis of one’s gender identity and/or sexual orientation. To learn more about sexual harassment.

The most important things to remember are:

1. Do not delete or throw away any documents related to your work even if you do not believe they are relevant to your case. Let your attorney make that determination. The term “documents” in litigation includes electronic documents like email, text messages, posts on social media, etc. Do not change cell phones unless you protect all electronic documents on your phone. It’s better to wait until you have given your attorneys all of your electronic documents before switching phones.
2. Do not ask your employer or former employer for any documents without speaking with your attorney first. Typically, your attorney will obtain all of your employment documents from your employer during litigation. You may give your attorney a copy of the documents relevant to your claim to which you have a copy.
3. The types of documents that you should give your attorneys, if you have a copy, include:
   1. Text messages
   2. Voicemail messages
   3. Audio or video recordings
   4. Email
   5. Social media posts
   6. Company policies, handbook, etc.
   7. Performance reviews, PIPs, etc.
   8. Employment forms, e.g., FMLA, ADA reasonable accommodation requests
4. All documents submitted to or received from the EEOC, including your Charge of Discrimination, Questionnaire, communications with the EEOC, and your Notice of Right Sue. Go onto the EEOC’s electronic portal and download all of the documents in your file and provide them to your attorney.

Georgia is a one-party consent state. This means that as long as one party – you – consents to the recording, you may record the conversation without violating Georgia law. Therefore, yes, you can record your conversations as long as you are a participant in the conversation. However, your employer likely has a policy against secretly recording your conversations. This means that while it may be legal in Georgia to secretly record your conversations, your employer may terminate you for doing so if your employer finds out. If time and circumstances allow, speak to a lawyer before you secretly record your conversations with anyone at work.

Federal employment laws contain provisions that allow employees who are successful in their cases to recover attorney’s fees and litigation costs. A contingency fee agreement with a lawyer under this circumstance typically means that you will not be required to pay any attorney’s fees unless you settle the case or win at trial. At settlement, your attorneys will likely disclose the sum of their fees to the employer’s attorneys and seek for the employer to pay them. If you win at trial, your attorney will file a motion for attorney’s fees and provide the Court with time records and ask that the Court order the employer to pay your attorney’s fees. In most cases where the employee is successful, the employer pays all or most of the employee’s attorney’s fees.

Typically, a contingency fee agreement also means that if you do not settle your case or you lose at trial, you will not be responsible to pay your attorney’s fees because your attorneys took the case contingent on settling it or winning it at trial.

If you have specific questions about your contingency fee agreement, make sure you speak with your attorney and get all of your questions answered.

As the saying goes, the wheels of justice turn slowly. Courts typically assign federal employment law and wage & hour cases to a four-month discovery track on the Court’s docket. And, almost every single case will have at least one extension around 30 days long at the end of discovery due to scheduling conflicts, discovery disputes, late production of documents, etc. Discovery begins 30 days after the defendant files its answer. Therefore, the time between filing your lawsuit and the close of discovery typically takes approximately seven to eight months.

Once discovery is closed, the defendant usually files a motion for summary judgment for the Court to rule on some, if not all, of the claims. The briefing process for summary judgment is approximately two months. Depending on how busy the Court is, a ruling is usually expected six months after the final summary judgment brief is filed. And, then, the losing party may appeal the Court’s decision.

Assuming some claims remain after summary judgment/appeal, the Court will begin discussions with the attorneys about filing the pretrial order and setting the case for trial. The case likely will not be set for trial for approximately 4 – 8 months. And, then, of course, the losing party at trial has the right to appeal.

All in all, from start to finish, litigation is a long process. This is one of the factors that encourages the parties to resolve the case during litigation through informal settlement discussions or more formal mediation.

In order for an attorney to determine whether to accept a case, they must review relevant facts and documents. As a starting point, you want to provide a potential attorney with the following information:

1. Contact Information (Name, Email, Cell Phone Number, & Address)
2. Name of Employer (if you feel comfortable disclosing)
3. Type of Business/Industry
4. Job Title & Job Duties
5. First & Last Dates of Work
6. Type Pay (hourly, salary, tips, etc,) and How Much
7. Number of Hours Worked Each Week
8. Whether you worked more than 40 hours in a given workweek
9. Whether your employer paid you the 1.5x overtime rate for all hours over 40 in a given workweek
10. Description of the Adverse Employment Action you are upset about (termination, demotion, hostile work environment)
11. What Happened (brief summary)
12. State whether you have filed a Charge with the EEOC yet, and if so, what date
13. State whether you have received a Notice of Right to Sue from the EEOC yet and if so, what date
14. Identify and Attach any Supporting Documents (Pay stubs, FMLA forms, EEOC Charge of Discrimination, Notice of Right to Sue, relevant emails, text messages and audio and video recordings)

You want to be careful about submitting too much information to potential attorneys. Provide them with the most relevant information identified above and let them follow-up with questions for additional information.