There are two types of sexual harassment claims. Hostile environment sexual harassment occurs where a co-employee's or supervisor's comments or actions of a sexual nature significantly affect the work environment. In most circumstances, before an employer can be held liable for hostile environment sexual harassment, it must have had notice of the harassment (usually through official channels) and have failed to take effective action to stop it. The second type of sexual harassment is quid pro quo (translated as "this for that") sexual harassment. Quid pro quo sexual harassment occurs where a supervisor or other person in a position of authority threatens some negative employment action or offers some employment benefit in connection with a request for sexual favors. An employer can be liable for quid pro quo sexual harassment regardless of whether it had prior notice. A person who suffers on the job retaliation as the result of raising a claim of sexual harassment also has a claim against the employer. (See Retaliation).
Many employers are routinely requiring employees to sign agreements that upon leaving employment (whether by quitting, layoff, discharge, or otherwise), he or she will not work for a competitor for a certain period of time (typically a year). These agreements can significantly affect an employee's ability to leave an undesirable working environment. Non-competition clauses can be successfully enforced by employers depending on the circumstances, and should be reviewed by an attorney.
Many employers offer severance payments to employees who are laid off or who volunteer to leave in connection with employer efforts to reduce the workforce. Some employers will offer severance packages to employees terminated for alleged inadequate job performance or misconduct. Nearly all severance packages contain a provision that the employee gives up any claim in exchange for the severance payment. An employee is normally given either 21 or 45 days to consider whether to accept the package, and 7 days after acceptance to revoke it. It is advisable to have these documents reviewed by an attorney.
Whistleblowers Protection Act
Michigan law prohibits employers from firing, suspending, demoting, or taking other negative action against an employee because he or she reported or was about to report a violation of the law to a government agency. This type of claim can arise where an employee reports a safety violation to a government agency, where an employee makes a report about a co-employee or customer to the police department, where an employee seeks a personal protection order against a co-employee or other person, or where an employee makes a statement or testifies in court. Whistleblowers claims are barred unless they are filed within 90 days.
Michigan and federal law prohibits employers from discriminating on the basis of race, gender, age, national origin, religion, and disability. Michigan law also prohibits discrimination based on height, weight, and marital status. Discrimination can be proved by direct evidence (showing that the decisionmakers were biased against a particular group) or indirect evidence (showing a similar situation where another employee of a different race, gender, age, etc. was treated differently).
Michigan courts have severely limited wrongful discharge cases not covered by statutes. Employees in Michigan are "at will" employees unless they have a written contract that says that they can be terminated only for good cause. Union employees can normally only be terminated for cause, and "for cause" contracts are often used for physicians and other health care professionals. Most employees, however, will be "at will," which means that they can be terminated at any time for any reason, except for a reason that is illegal. As a result, where an employee is terminated due to a personality conflict, office politics, or even for a reason that is totally false, he or she will not be able successfully to pursue a claim without proof that the employer's real reason for termination was an illegal one. Wrongful discharge cases outside of those based on statutes can still be made in situations where there is proof that the discharge was in violation of "clearly articulated public policy."
A number of employment laws have provisions barring employers from retaliating against employees who raise legal claims. If an employee suffers some negative action as the result of raising a claim of sexual harassment, discrimination, a benefits issue, an issue about whether he or she is being properly paid, an issue about legally protected medical leave, filing a workers compensation claim and other employment issues governed by state or federal law, he or she may have a claim for retaliation.
Most employee fringe benefits (employer provided health insurance, disability benefits, life insurance benefits, pension benefits) are governed by a federal law called ERISA ("Employment Retirement Income Security Act"). Employers or benefit plans can be sued for violation of certain "fiduciary duties" or for a failure to pay benefits according to the terms of the benefit plan. ERISA also prohibits employers from retaliating against employees for raising issues about benefits. COBRA ("Comprehensive Budget Reconciliation Act"), requires that employees who are terminated (except for "gross misconduct") be given the opportunity to continue health insurance coverage by paying a monthly premium. COBRA only applies to employees from private employers with 50 or more employees.
Family and Medical Leave Act (FMLA)
The Family and Medical Leave Act protects the jobs of employees who take a leave of absence due to their own or a family member's serious health condition. The law only applies to employees who have worked full time for at least a year for an employer with 50 or more employees. The law provides for up to 12 weeks of unpaid leave (although the employer may grant paid leave) in a 12 month period. If a covered employee has not exceeded that amount of leave, the employee must in most cases be given his or her job back.
Michigan law protects the right to receive commissions under a written contract or an employer's written policy. Companies often do not pay commissions owed under such a contract or policy to terminated employees. If it is proved that the company did not pay commissions owed when they were due, substantial penalties can be collected in addition to the commissions.
Many employers disregard or evade their obligation under the Fair Labor Standards Act or Michigan law to pay one and one-half times the regular rate of pay to nonexempt employees for time worked in excess of 40 hours per week. Whether an employee is nonexempt and therefore entitled to overtime, depends on a number of factors. Employers sometimes overlook the fact that salaried employees may be entitled to an overtime premium in addition to their fixed salary.