Employment Lawyers

While Indiana is generally considered an “employment-at-will” state, which means you can be hired or fired for any reason or no reason at all; you cannot be hired or fired for an illegal reason. Often this means that more important than what your employer did, is why your employer did it. Different laws apply to different classifications of employees, and every case is unique. Our team understands these differences and how they apply to your particular case, and we can determine whether you are protected by the law. If you feel your rights as an employee have been violated, you should contact the attorneys of Cleveland Lehner Cassidy to find out if you have a case.
• Employment Discrimination
• Wrongful Termination
• Sexual Harassment
• Hostile Work Environment
• Retaliation
• Equal Pay
• Pregnancy Discrimination
• Disability Discrimination
• Failure to Accommodate
• Family and Medical Leave (FMLA)
• Unpaid Wages and Overtime
• Severance and Non-compete Agreements
• Whistleblower Protections
• Federal and State Employees Rights

Do I have a case against my employer?

Take our Employment Law survey to find out.
Take the Survey Now

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 (typically referred to simply as “Title VII”), applies to employers with 15 or more employees, and prohibits discrimination in virtually any aspect of employment, including hiring, firing, compensation, promotion/advancement, and benefits just to name a few. Not only does it protect employees from discrimination based on race, color, sex, national origin, religion, and others; it also prohibits harassment based on those characteristics, and makes it unlawful for an employer to retaliate against employees who have complained about discrimination or harassment on behalf of themselves or someone else.

Race or Color Discrimination

Title VII of the Civil Rights Act of 1964 prohibits unlawful discrimination against any employee or applicant for employment because of race or color. It also prohibits employment decisions based on stereotypes and assumptions about abilities, traits or the performance of individuals of certain racial groups. Associational race discrimination is also covered, meaning you cannot be discriminated against because you’re married to a member of a different race or have bi-racial children.

Even though race and color clearly overlap, they are not synonymous. Color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity. 

Sex or Gender Discrimination

Much of gender discrimination at work is very subtle, and it can manifest in a multitude of ways, and can victimize both women and men. A well-qualified woman might be passed over for a promotion or new job because she’s been told clients and co-workers feel more comfortable working with another employee. An employer refusing to promote a woman to a supervisory position because it believes the other staff won’t respect her authority and classifying job duties as male or female “roles” are just examples of what federal law prohibits employers from doing.

Very recently, the federal court ruled that discrimination on the basis of sexual orientation constitutes “sex” discrimination under Title VII. As a result of this landmark decision, employers are prohibited from discriminating against employees based on their sexual orientation or gender identification.

Pregnancy Discrimination

The Pregnancy Discrimination Act (PDA) of 1978 amended Title VII to also prohibit discrimination based on pregnancy when it comes to any aspect of employment.

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. Impairments resulting from pregnancy, such as preeclampsia or gestational diabetes, may be considered disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation, such as leave or modifications that enable an employee to perform her job, for a disability related to pregnancy.

National Origin Discrimination 

Employers cannot treat job applicants or employees unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not). It also prohibits associational ethnicity discrimination — treating some unfavorably because they are married or associated with a person of a certain origin.

Religious Discrimination

Religious discrimination in the workplace can take many forms. An employer may not discriminate against you — including terminate your job, refuse to hire you or treat you differently than your co-workers — because of your religion. 

In many circumstances, your employer may be required under federal or state law to accommodate your reasonable requests for time off work or other accommodations related to the practice of your religion.

Retaliation

Title VII protects employees from retaliation when they enforce their rights under the law, but not all complaints made in the workplace are covered. An employee must engage in “protected activity,” by opposing unlawful discrimination, requesting a religious accommodation, or participating in investigations into discrimination and harassment. It also provides protection for employees who are closely associated with a “protected” employee, such as a spouse who is employed with the same employer. Workplace retaliation is any adverse action an employer takes in response to an employee engaging in protected conduct, such as complaining about unlawful discrimination or harassment. 

Harassment

Title VII also protects employees from harassment based on their “protected characteristics.” This can include behavior such as racial slurs and derogatory statements about religious practices and customs. However, not every type of unwanted behavior in the workplace constitutes harassment. The law differentiates between minor, isolated incidents and behavior that is so severe or pervasive that it creates a hostile work environment. Although in some instances an employer is automatically liable for harassment, more often employees are required to report the behavior to their employer. Failure to do so may result in an inability to pursue a harassment claim.

Civil Rights Act of 1866 – “Section 1981”

The U.S. Supreme Court has ruled employees may file suit under the Civil Rights Act of 1866 for discrimination in employment. While Title VII of the Civil Rights Acts of 1964 sets out similar protections, it sets a shorter deadline for filing lawsuits and limits the amount of money an employee who successfully sues can receive. 

Section 1981 of that statute confers a series of legal rights equally to all citizens, including the right to contract and to hold and convey property. In the employment context, it applies to the formation of the employment relationship and all aspects of that relationship, or its termination. This applies even if an employee is at-will and there’s no formal written contract or specific terms of employment.

The Americans with Disabilities Act

Title I of the Americans with Disabilities Act (or the “ADA”) applies to employers with 15 or more employees, as well as labor organizations and employment agencies. It prohibits covered employers from discriminating on someone’s disability in hiring, firing, compensation, promotion/advancement, and benefits just to name a few. It also prohibits employers from retaliating against employees who engage in conduct that is protected under the statute.

Disability Definition

In 2008, the ADA was amended to expand the definition of who qualifies as an individual with a disability. If an employee has a physical or mental impairment that substantially limits a major life activity, such as walking, sleeping, seeing, hearing, or breathing, he or she is protected. Moreover, an employer cannot discriminate against an employee based on his or her previous disability, even if the employee is no longer disabled as defined by the Act or his or her disability is in remission. Individuals who are perceived to be disabled by their employer also are protected; even if the employer is wrong, and the employee is not actually disabled.

The ADA also protects employees from associational disability discrimination, which occurs when an employer subjects an employee to disparate treatment or an adverse employment action because they’re associated with a disabled individual, like a child, spouse or even a workplace friend. Family members on the employee’s health insurance policy may cost the company additional many, which could result in termination of the associated employee.

Reasonable Accommodation

If needed, an employer must provide a reasonable accommodation — an adjustment or modification that allows the employee to do their job — to a qualified employee with a disability. After a request for accommodation is made, parties must begin the interactive process to determine what, if any, accommodation should be provided. Reasonable accommodations may include modified work hours, special office equipment, medical leave of absence, and short breaks throughout the day to allow the employee to get off his feet or take/administer insulin or other medication.

Retaliation

The ADA protects employees from retaliation when they enforce their rights under the law. It is illegal for employers to retaliate against employees who complain about unlawful disability discrimination on behalf of themselves or coworkers; and it is illegal for employers to retaliate against employees for requesting a reasonable accommodation.

Harassment

The ADA prohibits harassment of employees based on their disability. This can include both physical and mental disabilities. Disability harassment can include exclusion from work events and projects or negative statements about an employee’s physical, mental or emotional state.

Employer Required Health Examinations

The ADA limits employers’ ability to inquire about disabilities in the employment context. While employers are permitted to require employees to submit to medical examinations, such as health screenings and fitness for duty exams, in some instances; it prohibits employers from doing so in many other instances. For instance, employers may not ask whether a job applicant is disabled or require a medical examination before making a job offer; but may condition a job offer on successful completion of a post-offer medical examination, if it is required for all entering employees in the same job category. If an employee is not hired because of the results of a post-offer medical examination, the reason(s) must be job-related and consistent with a business necessity; and the employer must show that no reasonable accommodation was available that would allow the applicant to perform the job.

After employment begins, employers may only conduct medical examinations where there is evidence of a job performance or safety problem that the employer reasonably believes is caused by a medical condition. If an employer reasonably believes that an employee poses a “direct threat” to the safety of themselves or others, employers can require an employee to submit to a medical examination, but what types of medical conditions may pose a “direct threat” can vary based on the type of job.

The Rehabilitation Act of 1973

Another law that protects disabled employees is Section 504 of the Rehabilitation Act, which aims to “promote and expand employment opportunities in the public and private sectors” for disabled individuals. It prohibits federal employers and private sector employers who receive federal funding from discriminating against individuals with disabilities. It’s provisions essentially mirror those of the ADA.

ADEA – Age Discrimination in Employment Act

The ADEA protects employees over the age of 40 against age-related job discrimination. It prohibits employment practices such as passing over older workers for promotions in favor of less-qualified employees, because management wants a “younger, more energetic” office environment or feels younger employees will be more productive and motivated. It does not protect employees under the age of 40 from age discrimination, nor does it protect employees who are considered “bona fide executives” or “high policy makers.” With respect to lay-offs, it makes it unlawful for an employer to laying off older employees to replace them with a younger workforce.

Retaliation

The ADEA also protects employees from retaliation when they enforce their rights under the law. It is illegal for employers to retaliate against employees who complain about unlawful age discrimination on behalf of themselves or coworkers. In addition to firing or demoting an employee, retaliation can include publicly humiliating or embarrassing an employee, or refusing to recall an employee from a layoff after she complained she was selected for layoff because of age.

Harassment

Although the federal courts have not been clear, they have indicated that employees may sue their employer for creating a hostile working environment based on their age.

Family and Medical Leave Act (FMLA)

The federal Family and Medical Leave Act (FMLA) requires many employers to grant unpaid leave to an employee after the birth of a child, the arrival of an adopted child, to care for a sick relative or when the employee is ill. These laws apply to private and public employers with 50 or more employees. Any employer covered under state or federal law must grant unpaid leave of up to 12 weeks annually to eligible employees in these situations.



The FMLA defines eligible employees as those who have worked for an employer for at least 12 months and have provided at least 1,250 hours of service. When leave is granted by the employer, it can be taken all at once or it can be taken in smaller increments of time, known as intermittent leave. Once an employee has taken FMLA leave, employers are allowed to calculate the remaining amount of leave in several different ways. Making those calculations can be confusing for employees, who must rely on what they are told by the employer about their FMLA rights. 

Interference

The FMLA prohibits employers from interfering with an employee’s right to take FMLA leave, including by failing to notify an employee of his or her FMLA rights, improperly treating FMLA qualifying intermittent leave as unexcused absences, and refusing to reinstate an employee to his or her same or substantially similar position upon completion of FMLA leave. It prohibits employers from virtually any conduct that is meant to discourage employees from taking FMLA leave. It also prohibits employers from requesting medical paperwork outside of the provisions of the law each and every time an employee takes FMLA.

Retaliation

The FMLA also prohibits employers from retaliating against employees for requesting or taking FMLA leave. An employer retaliating against or subjecting an employee to disparate treatment because the employee has requested or taken FMLA leave, or terminating an employee while he or she is on FMLA leave or upon completion of FMLA qualifying leave could be considered retaliatory actions.

Genetic Information Nondiscrimination Act of 2008

The Genetic Information Nondiscrimination Act of 2008 prohibits discrimination on the basis of genetic information. Genetic information could point to the likelihood of an individual getting a disease and may lead to restrictions or decisions related to the future health of an employee.

GINA prohibits employers from discriminating based on an employee or applicant’s genetic information. Technically speaking, it includes information about a person’s genetic tests, as well as genetic tests of a person’s family members. It refers to information regarding the sign of a condition or disease in an individual’s family history. Genetic information also includes an individual’s use or request of genetic services or care. 

It is unlawful for an employer or potential employer to disclose genetic information about employees or applicants to third parties. All genetic information must be held in a separate, confidential medical file in compliance with the Americans with Disabilities Act.

The Employee Retirement Income Security Act (ERISA)

The Employee Retirement Income Security Act (or “ERISA”), regulates employee pension and welfare plans, such as retirement plans, and health and life insurance plans. Almost all benefit plans sponsored by employers are governed by ERISA. It requires that benefits be paid to qualified recipients, but also sets out time-sensitive procedures that must be followed to secure those benefits.

Retaliation

ERISA also prohibits employers from retaliating against an employee for engaging in “protected conduct,” meaning an employee cannot be fired or otherwise discriminated against for exercising his or her rights protected by the statute.

Employment Contracts

Some employees have employment contracts that dictate the terms and conditions of employment and promise employment for a specified period of time. Generally, this means that during the timeframe covered by the contract, an employee cannot be fired without due cause. Other employment contracts protect employers’ confidential information and prohibit employees from working for competitors. The law has certain requirements to make contracts enforceable.

Teacher Contracts

In addition to protections afforded other employees, teachers have additional employee rights. Not only do teachers have a contractual right to their employment, Indiana law provides a required process that school corporations must follow to terminate those employment contracts. Teachers are afforded tenure protections based on the number of years of service, and the required process depends on tenure status. In addition, because this process is guaranteed by the government, the Indiana and United States Constitutions protect that process.

Severance Agreements

Companies are not required by law to provide severance packages to employees. Whether to provide an employee with a severance package is within the sole discretion of the employer. Most severance agreements extend medical benefits and pay for a limited amount of time on the condition that the employee waives his or her right to sue the company. Therefore, it is common for employers to use a severance agreement to diffuse potential whistleblower actions, discrimination lawsuits, wage and hour disputes, and other employment claims.

Understanding what your rights and obligations are in the context of several competing legal and financial concerns is essential in determining whether or not you should accept a severance package. If you are faced with the decision to accept a severance package agreement, we will investigate your rights with regard to health care, disability coverage, COBRA, and ERISA claims that may arise from your mid-career loss of employment. 

In cases where age discrimination is a concern on the part of an employer, an employee must be given 21 days to decide whether or not to accept a severance package. This is intended to protect the company from allegations that they used pressure to force an employee to accept an offer. 

Non-Compete Agreements & Restrictive Covenants

A non-compete agreement or restrictive covenant is an agreement or contract not to interfere or compete with a former employer. 

Indiana Courts require non-compete agreements to be reasonable and narrowly tailored to protect an employer’s legitimate business interest, while not unreasonably restricting a former employee’s ability to find new employment. If it’s too broad or unreasonable, it will not hold up in court.

Likewise, if an employee is asked to sign a non-compete after he or she has already been working at a company, due consideration should be offered. Failure to provide due consideration in these circumstances may undermine an employer’s attempt to enforce a non-compete later.

Fair Labor Standards Act (FLSA)

The Fair Labor Standards Act (or “FLSA”) sets out minimum wage and overtime pay for most employers. It also provides clear guidance on what types of employees are considered “exempt” – salaried employees not entitled to overtime pay; and “nonexempt” – employees who are entitled to overtime pay in their jobs. The law regarding overtime is simple: a non-exempt employee must be paid time-and-a-half for all hours worked over 8 hours in any workday and over 40 hours in a workweek. Employers are prohibited from making non-exempt employees work through lunch breaks, take unpaid rest breaks, or open or close the business on unpaid time. Employers also cannot classify an employee as “exempt” from wage-and-hour laws simply by giving them a title, such as “manager,” if that employee does not perform legally specified managerial functions.

Retaliation

The FLSA prohibits employers from retaliating against employees for asserting their rights under the statute, including by complaining about not being paid overtime, whether or not their complaint is ultimately valid, or for providing testimony in support of a claim brought under the law. These anti-retaliation provisions apply to any employee, including former employees, and may extend to spouses of employees in some circumstances. Employers may not fire, demote, or deny promotion to employees who have exercised their rights under the Act.

Indiana Minimum Wage Laws

Most Indiana employers and employees are covered by the minimum wage and overtime provisions of the federal Fair Labor Standards Act (FLSA); however, those not covered under federal law may still be covered by the Indiana Minimum Wage Law. As of January 1, 2018, employers in the state of Indiana are required to pay employees at least $7.25/hour.

Wage Claims

Unpaid Wages

Indiana law requires that employers pay employees their wages in regular intervals. However, the process to file an action for unpaid wages depends on certain factors. Employees who have been involuntarily separated from employment (laid off or fired) must file a wage claim with the Indiana Department of Labor before proceeding to file a civil lawsuit to recover wages. An employee who is still employed or separates from employment voluntarily (quits) may either file a wage claim or file a private lawsuit to seek recovery of wages.

A successful wage claim will entitle the former employee to all unpaid wages, and in some cases, treble damages (double the amount of unpaid wages as a penalty for unlawfully withheld wages), as well as attorneys’ fees and costs. However, it is important for employees to know that Indiana law does not prohibit employers from retaliating against employees who complain about unpaid wages, including by terminating their employment.

Unlawful Wage Deductions

Indiana law limits what deductions employers can make from your paycheck, and makes other deductions illegal. For instance, an employer is not permitted under Indiana law to fine an employee and deduct the amount from his/her pay.

USERRA for Military Service Members

USERRA is intended to help military service members retain employment and benefits, seek employment free from discrimination and get protection if they are disabled. Individuals who were called up, activated or requested to return to duty may maintain re-employment rights to a civilian position for up to five years. Under the “escalator principle,” USERRA requires that veterans be returned to the job they would have attained had they not been away from work on military service. 

Service members who were injured while on duty may have up to two years to recover and rehabilitate under USERRA, while still maintaining job-protected status for a civilian position. Disabled veterans are also entitled to reasonable accommodations to return to work after being injured in the line of duty.

The date you are required to report to work and request re-employment under USERRA depends on the length of time you were away from work on military service. If you miss these deadlines, you do not automatically lose your right to re-employment, but additional conditions may be required before you are reinstated.

You are not required to use any accrued vacation or leave while you are on military service. You have the option, but your employer cannot force you to do so. Your employer must also put you back on the group insurance plan, if you had taken insurance through your work, without requiring a waiting period. Also, if you need additional training to get back up to speed on changes in your job that occurred while you were serving your country, your employer must make reasonable efforts to provide the needed training.

The U.S. Constitution

First Amendment

The First Amendment to the United States Constitution prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances. It prohibits the government from making laws that infringe on the rights of religion, speech, press, assembly and petition. While private sector employees do not have the protections of the First Amendments in their employment, public employees, including police officers and teachers have protection from retaliation for exercising certain First Amendment rights. 

Fourteenth Amendment

Through the Fourteenth Amendment, state and local governments are prohibited from infringing on the rights protected through the First Amendment. The 14th Amendment defines what it means to be a U.S. citizen and protects certain rights of the people. There are two clauses in the 14th Amendment that protect the rights of public employees – the Due Process Clause and the Equal Protection Clause. The due process clause requires that government employees receive a fair process before termination if the termination relates to a liberty (such as the right to free speech) or a property interest (such as certain jobs). The Equal Protection Clause limits the power of government employers to treat employees or job applicants unequally because of membership in a group.

Other Types of Retaliation

In addition to the anti-retaliation laws found in several of the federal laws, Indiana common law also prohibits employers from certain types of retaliation, including retaliating against employees for exercising their worker’s compensation rights (Frampton) and from refusing to engage in unlawful activities for which the employee may be held liable (McClanahan). Indiana law also prohibits employers from taking adverse actions against people who have filed restraining orders and from blacklisting employees by taking actions to interfere with their ability to find employment.

MSPB Complaints

There are also federal laws and regulations and Executive Orders (which are not enforced by EEOC) that prohibit discrimination on bases such as sexual orientation, marital status, parental status, or political affiliation. These violations fall under the purview of the Merit Systems Protection Board (MSPB). The MSPB is a quasi-judicial agency in the Executive branch. The role of the MSPB is make sure that the federal workforce is free of prohibited personnel practices and that federal agencies are following the merit rules and policies promulgated for federal employees.

Whistleblowing

False Claims Act “FCA” Retaliation

The False Claims Act allows people with first-hand knowledge to report fraud or corruption in government contracts or purchasing activities. It has an anti-retaliation provision which protects whistleblowers so they may do so without fear of retaliation or reprisal from their employer. Fraudulent practices can include billing for tests not performed, charging more than once for the same service, inflating bills by using improper diagnosis billing codes, and performing inappropriate or unnecessary procedures.
Contact us today to set up an appointment.
Get in Touch