Legal Resources Library

Learn more about the specific legal issues you’re facing, along with examples and details on the laws. Contact Cleveland Lehner Cassidy to discuss your specific case.

Employment Law

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.
We are prepared to give you quick, relevant advice when you are under time pressure to accept or decline a severance package agreement. On the other hand, we will represent you in the event of a severance package agreement that you have already signed.

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 employers legitimate business interest, while not unreasonably restricting a former employees 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.

Wage & Hour Laws / Collective Actions

Fair Labor Standards Act (FLSA) Violations

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. Some companies routinely violate wage-and-hour laws, by making non-exempt employees work through lunch breaks, take unpaid rest breaks, or open or close the business on unpaid time. Others classify certain workers as managerial and therefore treat them as “exempt” from wage-and-hour laws, even when these employees are not really managers.

Here are some common FLSA violations:

An employer misclassifying of employees as “white collar” and “salaried” and improperly treating them as exempt from FLSA regulations.

An employer paying non-exempted employees straight time for work performed in excess of 40 hours per week, rather than the time and a half required by the FLSA.

Employers working employees “off the clock” to trim expenses.

Employers improperly providing employees with comp time rather than paying overtime.

Failure to Pay Minimum Wage

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, 2015, the minimum wage in Indiana is $7.25/hour.

Tipped Employees

Tipped employees must be paid at least the minimum wage. The employer is required to pay a base hourly wage of $2.13 an hour. If the employee is not compensated at a rate equal to the minimum wage after adding any tips he/she received to the base hourly wage of $2.13 an hour, the employer must pay the employee the difference. If the employee earns more than the minimum wage after adding the tips he/she received to the hourly wage of $2.13 an hour, the employer has fulfilled his/her obligation.

A tipped employee means any employee engaged in an occupation in which he or she customarily and regularly receives more than $30 a month in tips.

Tip Pooling

Employers may require that tips/gratuities be pooled and distributed among certain employees (usually the front of the house only) as a mechanism for ensuring that gratuities are shared by all employees in the chain of customer service. Tip pools, whether voluntary or mandatory, are permitted for restaurant employees as long as:

Tip pool participants are limited to those employees who contribute to the chain of service bargained for by the patron;

No employer or agent of the employer takes or receives any part of the tips intended for employees; and,

The tips are distributed among the pool participants in a fair and reasonable manner.

Wage Claims (under Indiana’s wage claim and payment statutes)

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 many cases, treble damages (double the amount of unpaid wages as a penalty for unlawfully withheld wages) as well as, attorneys’ fees and costs.

Unlawful Wage Deductions: An employer is not permitted under Indiana law to fine an employee and deduct the amount from his/her pay.

Family and Medical Leave Act Violations (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.

Some common FMLA violations:

An employer failing to notify an employee of his or her FMLA rights.

An employer disciplining employees for requesting and/or taking FMLA leave.

An employer improperly calculating an employee’s intermittent FMLA leave or improperly treating FMLA qualifying intermittent leave as unexcused absences.

An employer refusing to reinstate an employee to his or her same or substantially similar position upon completion of FMLA leave.

An employer retaliating against or subjecting an employee to disparate treatment because the employee has requested or taken FMLA leave.

An employer terminating an employee while he or she is on FMLA leave or upon completion of FMLA qualifying leave.

An employer failing to provide written requests for medical certification and/or not providing the employee with at least 15 days to submit medical certification paperwork.

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.
  • Less than 31 days: After you have traveled home and had an eight-hour rest period, you must request re-employment at the beginning of the next regularly scheduled work period on the first full day after release from service.
  • More than 30 days, but less than 181 days: You must request re-employment within 14 days of your release from service.
  • More than 180 days: You must request re-employment within 90 days of your release from 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.

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 Rights

“Speech by citizens on matters of public concern lies at the heart of the First Amendment.” —as recounted by the Supreme Court in Lane v. Franks (S.C. 2014)

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.

The First Amendment is a limit only on government. It prohibits the federal government from making laws that infringe on the rights of religion, speech, press, assembly and petition.

Public employees, including police officers and teachers have protection from retaliation for exercising certain First Amendment rights.

The time limit for federal employee claims of retaliation in violation of the First Amendment will depend on the administrative remedies available. If you have a right to appeal an adverse employment action, for example to the Merit System Protection Board (MSPB), then you do not have a right to sue in court. The time limit for MSPB appeals is typically 30 days. See the MSPB’s Appeal Process for more information.
Freedom of Religion: The First Amendment prevents the American government from establishing an official religion. Citizens have the freedom to attend the church, synagogue, temple or mosque of their choice — or not attend at all. The First Amendment allows us to practice our religion the way we want to.

Freedom of Speech: The First Amendment keeps the American government from making laws that might stop us from expressing rational opinions. People have the right to criticize the government and to share their opinions with others. An employee does not relinquish his or her constitutional rights as a condition of employment by a public employer.

Freedom of the Press: A free press means we can get information from many different sources. The government cannot control what is printed in newspapers, magazines and books, broadcast on TV or radio or offered online. Citizens can request time on television to respond to views with which they disagree; they may write letters to newspaper editors and hope those letters will be printed for others to see. They can pass out leaflets that give their opinions. They can have their own Web pages and offer their opinions to others through the many means made available by the Internet.

Freedom of Assembly: Citizens can come together in public and private gatherings. They can join groups for political, religious, social or recreational purposes. By organizing to accomplish a common goal, citizens can spread their ideas more effectively.

Right to Petition: “To petition the government for a redress of grievances” means that citizens can ask for changes in the government. They can do this by collecting signatures and sending them to their elected
representatives; they can write, call or e-mail their elected representatives; they can support groups that lobby the government.

Fourteenth Amendment
Through the Fourteenth Amendment, state and local governments are also 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.

Due Process Clause: The due process clause protects the 1st Amendment rights of the people and prevents those rights from being taken away by any government without “due process.”

Equal Protection Clause: This part of the 14th Amendment states that there may be no discrimination against them by the law. The federal government enforces this protection on the states, ensuring that they do not. The Bill of Rights protects some rights for Americans, and the equal protection clause extends this protection to the state governments.

Federal EEO Complaints

If you are a federal employee or job applicant, the law protects you from discrimination because of your race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. The law also protects you from retaliation if you oppose employment discrimination, file a complaint of discrimination, or participate in the EEO complaint process (even if the complaint is not yours).

If you are a federal employee or job applicant and you believe that a federal agency has discriminated against you, you have a right to file a complaint.

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.

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 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.

Discrimination Law

Age Discrimination in Employment Act “ADEA”

Employees over the age of 40 are protected against age-related job discrimination due to a pervasive bias against older employees.
“Title VII” Civil Rights Act of 1964

Race & Color Discrimination
It is unlawful to discriminate against any employee or applicant for employment because of race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups.

Title VII prohibits race/color discrimination against all persons, including Caucasians.

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

Associational race discrimination is also covered under Title VII – you cannot discriminate because someone is married to a member of a different race or has bi-racial children, as is harassment or creating a hostile work environment based on race and/or color.
National Origin Discrimination
National origin discrimination involves treating people (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).

National origin discrimination also can involve treating people unfavorably because they are married to (or associated with) a person of a certain national origin, which is called Associational Ethnicity discrimination.

It is unlawful to harass a person because of his or her national origin. Harassment can include, for example, offensive or derogatory remarks about a person’s national origin, accent or ethnicity. Harassment is actionable when it is so pervasive or severe that it creates a hostile or offensive work environment, when it results in an adverse employment decision, or interferes with an employee’s ability to perform his or her job.
Religious Discrimination
Religious discrimination in the workplace can take many different forms. An employer may not discriminate against you, including terminating you, refusing to hire you, or treat you different from 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 of work or other accommodations related to the practice of your religion.
Sex/Gender Discrimination
Title VII prohibits discrimination and harassment based on an employee’s gender.

Men can be victims of sex discrimination. Sex discrimination can occur if employers or managers hold assumptions about what sort of work women and men are capable, or not capable, of doing.

Sex discrimination could include:

  • An employer not hiring a man because the employer thinks he won’t fit into a traditionally female workplace. 
  • An employer not paying men and women equal pay for equal work. 
  • An employer refusing to promote a woman to a supervisory position because it believes the other staff won’t respect her authority. 
  • An employer classifying job duties as male or female “roles.” 
  • An employer that requires women wear different clothing than their male co-workers, like provocative outfits.
The Equal Pay Act of 1963 (“EPA”)
The EPA prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort and responsibility under similar working conditions.
Pregnancy Discrimination
The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.

Pursuant to Supreme Court precedent, if a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, an employer must treat her in the same way as it treats any other temporarily disabled employee. As such, an employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

Additionally, impairments resulting from pregnancy, like gestational diabetes, may qualify as disabilities under the Americans with Disabilities Act (ADA). If so, 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.
Genetic Information Nondiscrimination Act of 2008 (GINA)
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from discriminating based on an employee or applicant’s genetic information, including information about a person’s genetic tests and the genetic tests of a person’s family members. 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 also includes a confidentiality requirement. 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.
Disability Discrimination (Americans with Disabilities Act “ADA”)
People with disabilities face unique challenges in the workplace. The Americans with Disabilities Act (ADA) prohibits employers from discriminating against employees or applicants with disabilities in all aspects of employment, including hiring, pay, promotion, and termination. The ADA also requires that employers provide qualifying employees with reasonable accommodations assist the employee in performing his or her job.

ADA Discrimination: Disability discrimination occurs when an employee with a visible or non-visible disability is treated less favorably than other employees or job applicants because of his or her condition.

The ADA protected the following employees/applicants from discrimination:
Disabled individuals. If an employee has a physical or mental impairment that substantially limits a major life activity, he or she is protected.
Individuals with a history of disability. 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. This is true even if the employer is wrong, and the employee is not actually disabled. If the employer discriminates against an employee based on its incorrect belief that the employee has a disability, the employee is protected by the ADA.

Failure to Accommodate: If needed, an employer must provide a reasonable accommodation to a qualified employee with a disability. After a request for accommodation has been made, the next step is for the parties to begin the interactive process to determine what, if any, accommodation should be provided. Reasonable accommodations may include:
    • Modified work hours
    • Special office equipment, like an ergonomic chair, voice recognition software, or hands-free headset.
    • Extended FMLA leave or a medical leave of absence.
    • Short breaks throughout the day to allow the employee to get off his feet or take/administer insulin or other medication.


Associational Discrimination: The ADA also protected employees from associational disability discrimination, which occurs when an employer subjects an employee to disparate treatment or an adverse employment action because they are associated with a disabled individual, like a child or spouse. For example, an employer may believe that family members on the employee’s health insurance policy may cost the company additional money, which may result in termination of the associated employee.
Harassment

Sexual Harassment: This involves “unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature.” Some common examples include:
  • A male employer offers a female employee a promotion and pay raise in exchange for sexual favors. This type of sexual harassment is known as quid pro quo harassment.
  • An employee makes sexual gestures or sexually derogatory comments, slurs, or jokes while at work.
  • A co-worker emails certain employees sexually explicit images, videos or content, whether using the employers’ or his or her personal email account.
  • Harassment of an employee by a customer or client of the employer.
  • Unwanted physical touching.
Men, like women, can be the victim of sexual harassment.

Other Harassment.
Harassment based on protected characteristics and status is also prohibited by federal state law. This includes age harassment, harassment based on sex (gender), race harassment, and religious harassment.

Retaliation: Workplace retaliation is any adverse action an employer takes against an employee in response to a complaint that employee has made about discrimination or harassment. It can also apply to employees who exercise their rights under laws such as workers’ compensation, employment laws, FMLA or other leave laws.

Federal anti-retaliation laws protect employees who complain on behalf of themselves, as well as other employees. They also protect employees who participate in the investigation of complaints of discrimination and other violations of the law. Retaliation can take many, often subtle forms.

Whistleblowing

False Claims Act “FCA” Retaliation
The False Claims Act has an anti-retaliation provision which protects whistleblowers who report fraud, so they may do so without fear of retaliation or reprisal from their employer. Fraudulent practices include but are not limited to:
• Phantom billing — Billing for tests not performed.
• Double billing — Charging more than once for the same service.
• Up-coding — Inflating bills by using diagnosis billing codes that indicate the patient experienced medical complications and/or needed more expensive treatments.
• Performing inappropriate or unnecessary procedures.
• Charging for equipment/supplies that were never ordered.
• A drug or equipment supplier completing a Certificate of Medical Necessity (CMN) instead of the physician.

Qui Tam
People with first-hand knowledge who report fraud or corruption in government contracts or purchasing activities may be entitled to a portion of any money recovered by the U.S. government.

Social Security Disability Claims

Severance Agreements

Companies are not required by law to provide severance packages to employees. As a result, severance agreements are offered at the discretion of an 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.

In cases where age discrimination is a concern on the part of an employer, an employee may 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.

Debtor & Creditor Law

Severance Agreements

The Fair Debt Collection Practices Act is a Federal Statute enacted in 1977 for the purpose of eliminating abusive practices in the collection of a consumer debt, to promote fair debt collection, and to provide consumers with an avenue for disputing and obtaining validation of a debt in order to ensure the accuracy.

The Act contains guidelines under which debt collectors may conduct business, defines rights of consumers involved with debt collectors, and prescribes penalties and remedies for violation of the Act.

If you believe that a debt collector is in violation of the FDCPA, please contact us for a free consultation. Our attorneys will thoroughly evaluate each case and develop the best strategy for you.

Debt Collection Defense

Our attorneys have vast experience and knowledge of consumer laws and the litigation experience to defend a lawsuit filed against you from a debt collector. We will zealously represent you in court, or work to negotiate a favorable settlement.

Retaining experienced counsel can often result in saving thousands of dollars compared to representing yourself in a debt collection matter. Please contact our offices for a free consultation to discuss your matter.

Landlord-Tenant Law

Evictions

Whether you are a landlord or a tenant, hiring a lawyer can increase your chance of success. Our attorneys are knowledgeable about landlord-tenant law and have significant experience with evictions. Our attorneys will thoroughly investigate each matter and formulate an effective strategy.

Lease Negotiations

Whether you are a Tenant or a Landlord under a commercial or residential lease, the unrepresented party is at a significant disadvantage. A commercial or residential lease is a complex contract that covers a period of time in which any number of events, both planned and unplanned, could occur. It’s essential that someone familiar with leases and lease negotiations make sure the most common contingencies are covered before the document is executed.

Our attorneys understand the complexities of leases and draw upon their experience to recognize what is achievable given the circumstances and work to achieve the optimal results.