Cohen Employment Law focuses on representing its clients within four core practice areas: (1) unpaid wages, overtime, and commissions (wage and hour); (2) employment agreements and severance packages; (3) trade secret misappropriation; and (4) leave and accommodations.
Class (or collective) actions contain many nuances that are beyond the scope of this brief description, but at their core, they require that a group of employees suffer similar legal violations by their employer. Class or collective actions help streamline litigation when a particular violation affects many employees, allowing employees to seek relief simultaneously rather than through hundreds or thousands of individual lawsuits. Class or collective actions also make pursuit of smaller claims more cost-effective and viable.
The exact cost of your engagement will depend on your needs, but unlike many other firms, we endeavor to make our pricing as transparent as possible. Rather than strictly billing by the hour, most of our engagements—including litigation—are provided on a flat fee or a contingency fee basis (or some combination thereof). This allows you to accurately project your legal spend and ensures that our interests are always aligned.
Yes. The law protects employees who file a lawsuit against their employers from retaliation, including termination, regardless of whether the employment relationship is ongoing. Of course, as a matter of practicality, supervisors or coworkers may react and make the workplace a less comfortable environment after a lawsuit is filed, but the law prohibits most negative treatment in response to litigation, such as harassment, a demotion, or termination. At Cohen Employment Law, we work closely with our clients to develop strategies for handling these situations, both before and after a lawsuit is filed. We’re also proud to have established new precedent in North Carolina prohibiting employers from retaliating against current or former employees by filing frivolous counterclaims against them in responding to a lawsuit.
Employees should be classified as nonexempt by default unless a particular exemption applies. Determining whether an exemption applies depends on a number of factors, including an employee’s job duties, how the employee is paid (on a salary basis, by the hour, etc.), and how much the employee is paid. Common exemptions include the executive, administrative, professional, computer, outside sales, and highly compensated employee exemptions, but there are many other exemptions that may apply. For a more thorough review of the applicable exemptions, visit the Overtime Exemptions section of the FLSA Review.
Misclassifying employees as independent contractors is a common issue with significant potential ramifications, including employment law, tax law, and immigration law violations. Under the Fair Labor Standards Act (FLSA), determining whether a worker is an employee or an independent contractor generally requires an assessment as to whether, as a matter of economic reality, the worker is dependent on the hiring party. For a more thorough review of the issue, visit the Independent Contractors vs. Employees section of the FLSA Review.
Calculating overtime rates depends on how an employee is paid, whether on an hourly basis, fixed schedule salary basis, fluctuating schedule salary basis, piece-rate basis, day-rate basis, at multiple different rates, with bonuses or commissions, or as a tipped employee. For a straightforward explanation as to how to calculate overtime rates, visit the Calculating Overtime Premiums section of the FLSA Review.
Employees may be entitled to leave under several different federal and state statutes, as well as a particular employer’s policies.
Broadly stated, the Family and Medical Leave Act (FMLA) entitles employees to leave to bond with a newborn or recently adopted child, or for certain health conditions that they or their family members suffer from, if they (1) worked for their employer for at least 12 months as of the date leave is to begin, (2) worked for at least 1,250 hours during the preceding 12 months, and (3) work at a location that employs 50 or more employees within a 75-mile radius.
The Americans with Disabilities Act (ADA) may entitle employees to leave for a limited duration as a reasonable accommodation for a disability.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) entitles employees to leave to serve in the military or to engage in certain duties related to their military service, whether voluntary or involuntary.
North Carolina and Virginia law also entitle employees to time off in certain situations, such as to serve on a jury or to attend to particular legal issues.
Mr. Cohen has counseled and advised some of the largest employers in the country on complex leave situations under federal and state law. He has also successfully litigated cases involving leave laws at federal appellate and district courts nationwide.
Federal law requires employers to provide reasonable accommodations to employees who have a need due to their disability status, pregnancy, or religious beliefs or practices, so long as providing an accommodation will not pose an undue hardship (generally a significant difficulty or expense) for the employer. Reasonable accommodations vary depending on an employee’s needs and may include things such as modified work schedules, job restructuring, additional breaks, providing assistive equipment or technology, reassignment to an open position, changing workplace policies (for example, allowing a diabetic employee to eat while on duty), remote work, or leave.
While not required, it is often advisable to have an employment lawyer review any employment agreement or severance package before execution. These agreements typically contain terms with significant economic and non-economic implications, including those affecting an employee’s ability to work for competitors after termination (non-compete provisions), ability to solicit or work with certain customers or coworkers after termination (non-solicitation provisions), ability to pursue litigation against the employer (release or arbitration provisions), liability for fees in the event legal action occurs, obligations as to how to handle confidential information, and, of course, entitlement to payments and equity. Working with an employment lawyer not only helps employees understand the legal implications of these agreements, but it could also provide employees with better perspective as to what constitutes fair market value and how to negotiate more favorable terms.
Yes. Even if you do not ultimately retain Cohen Employment Law, any information discussed during your initial consultation is treated as privileged and confidential.
Focusing exclusively on employment law allows us to become more familiar with the nuances and intricacies of this area of the law than a generalist may be able to. We handle employment law issues every single day, unlike many other firms that juggle different practice areas. As the expression goes, “jack of all trades, master of none.”
While our firm works to keep cases moving forward as efficiently as possible, litigation is a long process for reasons beyond our control. From filing through trial, you should expect your lawsuit to take at least one year, though many cases resolve sooner than that. We’ll be sure to keep you updated every step of the way, and we provide all of our clients with a comprehensive litigation roadmap explaining each phase of a lawsuit and roughly how long each phase typically takes.
Not necessarily. Even after an employee exhausts all of their FMLA leave, they may be entitled to additional leave under other statutes, including the ADA if the employee’s inability to return is due to a disability. All facts and circumstances should be considered before an employee is terminated for failure to return from a period of leave.
To request a reasonable accommodation, an employee must simply inform their employer that an adjustment or change at work is needed based on a disability, medical condition, pregnancy, or religious belief or practice. No magic words or explicit references to the ADA, the Pregnant Workers Fairness Act, or Title VII are needed.
Upon receiving a request for a reasonable accommodation, employers are responsible for either granting the request or engaging in the interactive process, whereby the employer and employee discuss the limitations experienced by the employee and explore reasonable accommodations that could overcome those limitations. To the extent a potential reasonable accommodation is identified that will enable the employee to perform the essential functions of their job and will not pose an undue hardship upon the employer, the employer should implement the accommodation.
No. The notion that salaried employees are automatically exempt is a common misconception. While paying an employee on a salary basis favors an exempt classification for the executive, administrative, and professional exemptions, other factors, including the job duties assigned to the employee and the amount of compensation paid to the employee, must be evaluated before an exempt classification could apply. There are also many exemptions that may apply to employees who are not paid on a salary basis at all. For a more thorough review of the applicable exemptions, visit the Overtime Exemptions section of the FLSA Review.
Whether travel time is compensable depends on the circumstances. At a high level, ordinary commuting time between home and work is not compensable—even if an employee has to report to different job sites—while time spent traveling during the workday as part of an employee’s job activities is compensable. There are exceptions to these general principles, and the issue becomes more complicated in instances of travel to another city. For more information, visit the Hours of Work section of the FLSA Review.
Training time is generally compensable, but there are certain circumstances in which time spent training does not need to be paid. For more information, visit the Hours of Work section of the FLSA Review.
Whether “on-call” time is compensable turns on how onerous the restrictions imposed upon an employee are. The more onerous the restrictions—that is, the less an employee can use “on-call” time for their own purposes—the more likely it is that the time is compensable. For more information, visit the Hours of Work section of the FLSA Review.
Time spent waiting for work is compensable if an employee is “engaged to wait”—that is, if the employee is at work as scheduled and is waiting to be assigned something to do. By contrast, if an employee is merely “waiting to be engaged” and completely relieved from duty, time spent waiting for work is not compensable. For more information, visit the Hours of Work section of the FLSA Review.
Meal breaks are generally not required under federal law. When meal breaks are offered, they may be unpaid as long as they last at least 30 minutes and employees are relieved from all duties during the break. For more information, visit the Hours of Work section of the FLSA Review.
Whether pre- or post-shift tasks are compensable typically depends on whether they are “integral and indispensable” to an employee’s primary job duties. If the activities are “integral and indispensable,” they must be paid. This question is a common source of litigation. For more information, visit the Hours of Work section of the FLSA Review.
Taking deductions or withholdings from an employee’s wages is generally unlawful without the employee’s express written authorization, or where the deductions or withholdings may reduce an employee’s wages below the minimum wage or required overtime rate. There are, however, exceptions to this general rule. For more information, visit the Deductions and Retaliation section of the FLSA Review.
No, unless the employer operates a valid tip pool. This generally limits the sharing of tips to employees who customarily and regularly receive tips. When tips are shared (even in small part) with employees who do not customarily and regularly receive tips, such as dishwashers, chefs, or managers, tip pools are generally invalid and unlawful. For more information about the regulations governing tipped employees, visit the Minimum Wage Exemptions section of the FLSA Review.
Comp time is only permissible for public sector employers. Private sector employers who provide or offer comp time in lieu of cash overtime violate federal law. For more information about comp time, visit the Overtime Exemptions section of the FLSA Review.
Rounding is technically permissible, but only if it is both facially neutral and applied neutrally to employees. Unless employees are typically benefitting or at least breaking even from rounding, rounding practices risk violating the law.
The answer is no, but before describing why, both of these terms should be understood.
“At will” employment means that employment is not for any specified period and that either an employer or an employee can end the employment relationship at any time, with or without notice or cause, for any reason not prohibited by law.
“Right to work” is a concept commonly confused with the at-will employment doctrine, though it is entirely distinct. “Right to work” simply means that employees have the right to secure or maintain a job without joining a union or paying union dues.
North Carolina and Virginia are both “at will” and “right to work” states.
Consistent with the at-will employment doctrine, employers can fire employees only for reasons not prohibited by law. The law prohibits a number of categories of terminations, including those based on (1) discrimination due to someone’s membership in a protected class (such as race, sex, religion, physical or mental disability, pregnancy, age (age 40 and over), color, ethnicity, national origin, sexual orientation, military service, and genetic information), (2) retaliation for engaging in protected activity (for example, filing a lawsuit, participating in an investigation, or reporting unsafe working conditions), (3) acting as a whistleblower, (4) engaging in some act protected by public policy (for example, refusing to break the law), or (5) where doing so would violate an employment contract.
The terms “labor lawyer” and “employment lawyer” are often used interchangeably, but they do involve different areas of focus. Labor lawyers primarily focus on collective bargaining and union-related issues, while employment lawyers deal with an array of issues unrelated to unions, such as wrongful termination, discrimination, harassment, retaliation, wage and hour, leaves of absence, accommodations, trade secrets, non-compete agreements, whistleblowing, background checks, benefits, and other workplace rights.
Even after the termination of an employment relationship, sales employees are often still owed commissions for sales made before the termination. In some instances, sales employees may even be owed commissions for clients and customers they brought in prior to the termination, where those clients and customers continue to make purchases after the termination. To determine a sales employee’s entitlement to post-termination commissions, a thorough review of all applicable agreements and policies is necessary.
Whether non-compete agreements are enforceable depends on many factors, including how reasonable their restrictions are as to scope, duration, and geography, whether they protect an employer’s legitimate business interests, whether they are supported by adequate consideration, and whether they are otherwise consistent with the public policy of the state law they are governed under. Non-compete agreements are also restricted for certain categories of employees, including “low wage” employees in Virginia. Assessing the enforceability of non-compete agreements requires a case-by-case analysis of the terms of the written agreement, the nature of the employer’s business, and the duties and scope of the employee’s job.
At a high level, a trade secret is confidential business information that provides companies with a competitive edge. Trade secrets derive independent economic value from not being generally known and must be the subject of reasonable efforts to maintain their secrecy. Trade secrets can encompass a wide range of information, including formulas, patterns, processes, techniques, plans, designs, algorithms, code, customer lists, customer requirements, supplier lists, product specifications, financial data, and marketing strategies. Unlike patents, copyrights, and trademarks, trade secrets do not require formal registration and may be maintained indefinitely. Well known examples include Coca-Cola’s formula and Google’s search algorithm.
Yes. Under the Fair Credit Reporting Act, employers must provide a clear and conspicuous disclosure, and job applicants or employees must affirmatively provide consent, before a background check may be procured.
Yes, but before doing so, a job applicant or employee must be provided with a copy of the background check report and a written notice describing the applicant’s or employee’s rights to dispute the accuracy of the background check.