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The Law Office of Robert J. Hunt, LLC

Get Answers To Your Most Frequently Asked Employment Law and Unpaid Wage Questions

At Gibbons Legal Group, we focus on employment law.  To help you understand this complex area of law, we've compiled some of the questions we hear the most in our Indianapolis law firm.  Please feel free to give us a call if you have any more questions that have not been answered on this page.

 

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  • How long does it take to handle Indiana employment law cases?

    Most people who contact my law firm have never sued anyone or been involved in a lawsuit.  As a result, I am often asked questions about the legal process.  Potential clients always ask, "How long does a lawsuit take?"  Typically, it will take at least 18 months for a case to go to trial.  The good news, however, is that less than 2% of cases actually go to trial.  Most cases are resolved long before the trial date.  Many cases are settled either through private mediation or court supervised settlement conferences, which are typically scheduled 6 to 9 months after a lawsuit is filed.  Sometimes, we are even able to resolve cases before lawsuits are filed through the use of settlement demand letters.  When you hire an Indianapolis employment law attorney to sue an employer, you should expect the case to take at least 1 year before it is resolved.  Each lawsuit is different, however, and there are many factors that can speed up or slow down the legal process.    

    The Law Office of Robert J. Hunt, LLC is an Indianapolis employment law firm that handles employment lawsuits in federal and state courts.  Indiana state courts are located in every county in Indiana.  The federal court system has courts located in Indianapolis, Terre Haute, New Albany, Evansville, Fort Wayne, Lafayette, South Bend and Hammond.

  • Should I Provide My Employer With a Written Rebuttal or Statement?

             Have you ever heard the advice, “write an angry letter if it makes you feel better, just don’t send it?”  The same is true in employment law.  Write a response or rebuttal to your employer for a disciplinary action or termination of employment.  Get it all out.  Just don’t send it to your employer!  In all of the years that I have been practicing employment law, I have never experienced a helpful employee rebuttal.  The need to be right, or have the last word, often leads people to say things they can’t take back.  I can promise you, if you submit something in writing, it is more likely to be used against you than in your favor.

             Let’s make one thing clear---the responses and rebuttals to which I refer are not those requested by employers as part of workplace investigations or inquiries.  The failure to cooperate during these proceedings is called insubordination and will likely create a different type of problem for you.  The responses and rebuttals I am talking about are written items like emails threatening actions such as reporting your employer to OSHA or the IRS, bad-mouthing your employer in social media, or even making threats of physical harm.  I am also talking about point-by-point rebuttals of disciplinary actions, performance reviews, and coaching.  Some people tell me that they “wanted something in their personnel file with their side of the story.”  Others want to “explain” what happened.  And, unfortunately, some are just submitted without any thought at all. 

    As an attorney, whenever I see these documents, (which sometimes consist of multiple single-spaced pages), I cringe because I know there will be something in there that will likely hurt your lawsuit.  If you feel the need to rebut or respond to your employer, go ahead and write everything down.  But do not turn it in to your employer.  On the top of the page, write: “Notes For My Attorney” and keep it in a safe place. 

  • I Was Fired From My Job and Asked to Sign A Release -- What Should I Do?

             Being fired from a job is often surprising, shocking, hurtful, embarrassing, or some combination of these emotions.  Most of the time, the only thought going through your mind is leaving the employer’s premises as quickly as possible.  Even if a termination meeting catches you completely off-guard, most times the employer’s decision was preplanned, reviewed by Human Resources and even approved by your employer’s legal counsel.  When your employment is terminated, your employer may instruct you to sign documents relating to your discharge.  YOU ARE NOT REQUIRED TO SIGN ANY DOCUMENTS!!!  I can almost guarantee that in the moments following your termination, your ability to focus, review, and understand paperwork will be somewhere between significantly diminished and nonexistent.  Once your employment has been terminated, what more can your ex-employer possibly do to you if you simply refuse to sign any paperwork until you have had a chance to carefully review it? The answer is absolutely nothing.  I am not suggesting you refuse to accept the paperwork.  To the contrary, I encourage you to gather any papers your employer asks you to sign, inform whoever is present that you are not willing to sign the documents at this time, but that you will be in contact once you have a chance to review them.  Then leave—do not argue, debate or discuss your termination. 

             It is not uncommon for Indiana employers to request signatures on documents that purport to release your legal claims, limit your right to obtain employment with competitors, or provide an admission regarding the conduct for which you were terminated.  Sometimes, employers will instruct you to sign a release under the guise that it is “required” to obtain your earned vacation pay, a reference, or severance.  In most circumstances, be suspicious if an employer wants a signature “on the spot.”  Typically, you are signing away some important legal right.  Even if your employer is offering you a generous severance package, it is the rare case that you will not be entitled some amount of time to review and consider the offer.

             Once you have a signed a release, it is difficult (if not impossible) to successfully pursue a legal claim against your ex-employer.  In these circumstances, before the Court will even consider your wrongful discharge, retaliation, or harassment claim, you will have to overcome the presumption that you have waived your legal claim by signing a release.  To overcome this presumption, you will have to prove you were coerced or tricked into signing the release.  Most times, the Court will find in favor of the employer and enforce the release.

  • Should I Sign a Release of Claims or Other Documents At Termination?

    Being fired from a job is often surprising, shocking, hurtful, embarrassing, or some combination of these emotions.  Most of the time, the only thought going through your mind is leaving the employer’s premises as quickly as possible.  Even if a termination meeting catches you completely off-guard, most times the employer’s decision was preplanned, reviewed by Human Resources and even approved by your employer’s legal counsel.  When your employment is terminated, your employer may instruct you to sign documents relating to your discharge.  YOU ARE NOT REQUIRED TO SIGN ANY DOCUMENTS!!!  I can almost guarantee that in the moments following your termination, your ability to focus, review, and understand paperwork will be somewhere between significantly diminished and nonexistent.  Once your employment has been terminated, what more can your ex-employer possibly do to you if you simply refuse to sign any paperwork until you have had a chance to carefully review it? The answer is absolutely nothing.  I am not suggesting you refuse to accept the paperwork.  To the contrary, I encourage you to gather any papers your employer asks you to sign, inform whoever is present that you are not willing to sign the documents at this time, but that you will be in contact once you have a chance to review them.  Then leave—do not argue, debate or discuss your termination. 

             It is not uncommon for employers to request signatures on documents that purport to release your legal claims, limit your right to obtain employment with competitors, or provide an admission regarding the conduct for which you were terminated.  Sometimes, employers will instruct you to sign a release under the guise that it is “required” to obtain your earned vacation pay, a reference, or severance.  In most circumstances, be suspicious if an employer wants a signature “on the spot.”  Typically, you are signing away some important legal right.  Even if your employer is offering you a generous severance package, it is the rare case that you will not be entitled some amount of time to review and consider the offer.

             Once you have a signed a release, it is difficult (if not impossible) to successfully pursue a legal claim against your ex-employer.  In these circumstances, before the Court will even consider your wrongful discharge, retaliation, or harassment claim, you will have to overcome the presumption that you have waived your legal claim by signing a release.  To overcome this presumption, you will have to prove you were coerced or tricked into signing the release.  Most times, the Court will find in favor of the employer and enforce the release.

  • How Do I Find A Qualified Indianapolis Employment Law Attorney?

    HOW DO I FIND A QUALIFIED EMPLOYMENT LAW ATTORNEY?

             Indiana employment law attorneys are not permitted to advertise that they “specialize” in employment law.  Nonetheless, there are only a small handful of attorneys in Indiana who focus exclusively on legal issues faced by employees.  The decision to hire an attorney is obviously important.  To find the best attorney for your situation, I believe there are certain key questions that need to be answered.   This will take some time on your part, but it will be time well spent. 

             1.      Recognize that you might have to hire an attorney outside of your town or city.  In other words, the most experienced attorney for your situation may be located several hours from where you live. 

             2.      Get as much information as you can before you even talk to a lawyer.   Do your own research about the attorney by first checking the Indiana Roll of Attorneys at www.courtapps.in.gov/rollofattorneys.  This website contains a listing of all attorneys licensed to practice law in Indiana.  Each attorney’s record includes license status, disciplinary history, and contact information. 

             3.      You should also research attorneys at www.avvo.com.  This website rates attorneys on a scale of 1 -10, based upon their experience and peer reviews.  Avvo's highest rating is a "10."

             4.      Another website you should check in www.martindale.com.   This website also rates attorneys based upon peer reviews. Martindale's highest rating is “AV.”

             5.      Finally, go to the attorney’s website.  Does the website provide helpful information?

             6.      When you call the lawyer’s office, how are you treated?  Is your call rushed or are you treated like a welcome visitor? 

             7.      When you talk to the lawyer, ask about his or her experience handling employment law cases.  Some lawyers only devote a small percentage of their time to these cases, making it difficult to keep up with changes in the law.

             8.      Do you feel comfortable with the lawyer and the law firm’s staff?  You are entering a long-term relationship.  Ask who you can talk to if you have questions as the case develops.  Ask how quickly will your telephone calls be returned.

             9.      Trust your intuition.  Ask yourself, does the lawyer seem interested in my situation, or more concerned about whether I can afford to pay a retainer?

             For most people, hiring the right lawyer is one of the most important steps in maximizing your chances of winning an employment law claim.  Choose wisely!

  • I quit my job, can I sue for discrimination or harassment?

    I cannot count the number of times that someone has called my law firm, described a workplace situation that likely violated a federal or state employment law, but then told me he quit his job.  As far as I am concerned, this is the “kiss of death” for a good discrimination or retaliation employment law claim. 

    Yes, I know all about the legal doctrine of “constructive discharge,” i.e. where conditions are so unbearable that no reasonable person could continue working under those circumstances.  The doctrine of constructive discharge makes for a good law review article, but try successfully litigating a constructive discharge claim in federal court.  Except for the most extreme circumstances, most constructive discharge claims fail.  As a general rule, if you have quit your job, you likely have cutoff your damages as of the date you quit.

             When you quit your job because of discrimination, harassment or retaliation, your employer wins on every level.  You have not only potentially harmed or destroyed your employment law claim, but you just solved your employer’s biggest problem—how to get rid of you.  In fact, your employer secretly will celebrate the fact that you quit your job.  But, the opposite is also true.  As long as you remain employed, you are the proverbial “fly in the ointment.”  You are privy to what is occurring in the workplace, and you still have access to your email and other relevant evidence.  Plus, in the context of a lawsuit settlement, you can often negotiate your resignation for a more lucrative recovery.

             If your employer is subjecting you to unlawful conduct and you are contemplating taking legal action, chances are that you think about quitting on a daily basis.  If possible, don’t quit!  Instead, contact an experienced employment lawyer to discuss your legal rights.  The Law Office of Robert J. Hunt, LLC is an Indianapolis employment law firm that represents clients throughout the state of Indiana.

  • Can I be fired for filing an overtime claim?

    Not legally and not without risking a substantial penalty. The FLSA specifically provides that it is “unlawful for any person … to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted any or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding.”

    An employer who retaliates or discriminates against an employee in violation of this statute is potentially subject to fines or even criminal prosecution, and the affected employee is entitled to “legal or equitable relief … including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount” plus attorneys’ fees and court costs. Punitive damages are available in appropriate cases, and “anti-retaliation” cases may be brought against individuals as well as institutional employers. In addition to “firing” cases, retaliation has been found when employers blacklisted employees who made FLSA claims, refused to hire applicants who had made FLSA claims at other jobs, fired relatives, reduced job responsibilities, assigned employees to unpopular job duties or shifts, disciplined employees out of proportion to past disciplinary practices, reduced performance evaluations, and declined to recommend “normal” raises.

  • Is there a statute of limitations for overtime claims?

    The FLSA allows you to recover the overtime pay you are owed for hours worked within two years back from the date you file suit or consent to join an existing lawsuit. For example, if an employee were to file an FLSA lawsuit on January 1, 2013, he could only attempt to recover pay for time worked after January 1, 2011. In some cases, where the employer is found to have willfully or recklessly violated the FLSA, you may be able to recover pay from three years prior to the date you file suit or consent to join an existing lawsuit. Because of these limitations, if you think you may be owed overtime pay it is important that you consult an overtime lawyer as soon as possible. If you do not pursue the pay you are owed, some or all of your claim may be barred by the passage of time.

  • What can I do if my employer has refused or failed to pay me overtime?

    If you are owed overtime pay or minimum wage, your should contact one of our experienced overtime attorneys to help you recover the pay you are owed. Under the FLSA, employees who are “similarly situated” (i.e., they work in similar jobs and are subject to the same pay policies and procedures) can pursue their back wages through a “collective action.” This is often the most effective way for employees to recover their overtime pay, because it allows a group of employees the advantage of lower individual costs to vindicate their rights by the pooling of resources.

  • If my employer classifies me as an independent contractor, am I entitled to overtime?

    Independent contractors are not employees, and therefore are not entitled to overtime. Many employers, however, misclassify employees as independent contractors to avoid paying overtime and other benefits.

  • Can my employer award me compensatory or “comp” time instead of paying me overtime?

    No. Only government employees (public sector) are permitted to receive comp time. If you work overtime, you are entitled to be paid.

  • Can my employer refuse to pay me overtime if it was not approved?

    Probably not. If your employer knew you were working overtime, or should have known, you probably are entitled to be paid.

  • Can my employer require me to work “off the clock”?

    No. You are entitled to be paid for all time worked. Employers are not permitted to require employees to perform work prior to the start of their shifts, during unpaid lunch breaks, or after their shifts have ended.

  • How is overtime paid?

    Under most circumstances, overtime is paid at time and one-half the “regular rate of pay” for every hour worked in excess of 40 hours in a workweek. There are some exceptions to this rule. In certain situations, employees can legally be paid less then time-and-a-half for overtime hours. If an employee who is eligible for overtime receives commission as part of his compensation, his overtime pay only needs to include one-half the hourly amount he receives for commission (though his base pay, if he receives any, should still be paid at time-and-a-half). For example, if such an employee earns $1,000 in commission for a week in which he worked 50 hours, he is effectively earning $20/hour from the commission payment. He should be compensated for the 10 overtime hours he worked that week at one-half his commission rate, or $10/hour, in addition to overtime compensation for his base rate, if any.

    Another method under which employees can be paid half-time for overtime hours is known as the “fluctuating workweek method.” Under this system, the employee must receive a fixed weekly salary for a work schedule that fluctuates from week to week, and the salary must be large enough that the employee receives at least the minimum wage for his longest workweeks. Additionally, there must be a “clear, mutual understanding” between the employer and the employee that the weekly salary is meant to compensate the employee for whatever number of hours the employee might work, whether many or few. If these requirements are met, the employee may be paid at the rate of one-half the effective hourly rate for his overtime hours.

  • What is overtime?

    Under the FLSA, any hours worked in excess of 40 in a workweek are considered overtime. A workweek can be any fixed period of seven consecutive days and can begin on any day of the week. For purposes of calculating overtime, each workweek is considered separately and cannot be averaged across two or more pay periods.

  • What is the law that governs overtime and minimum wage cases?

    The Fair Labor Standards Act or FLSA is the federal law that governs the payment of overtime and minimum wage.

  • Can I be fired for filing a minimum wage or overtime claim?

    Not legally and not without risking a substantial penalty. The FLSA specifically provides that it is “unlawful for any person … to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted any or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding.” An employer who retaliates or discriminates against an employee in violation of this statute is potentially subject to fines or even criminal prosecution, and the affected employee is entitled to “legal or equitable relief … including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount” plus attorneys’ fees and court costs. Punitive damages are available in appropriate cases, and retaliation cases may be brought against individuals as well as institutional employers.

    In addition to “firing” cases, retaliation has been found when employers blacklisted employees who made FLSA claims, refused to hire applicants who had made FLSA claims at other jobs, fired relatives, reduced job responsibilities, assigned employees to unpopular job duties or shifts, disciplined employees out of proportion to past disciplinary practices, reduced performance evaluations, and declined to recommend “normal” raises.

  • Is there a statute of limitations for overtime and minimum wage claims?

    The FLSA allows you to recover the minimum wage pay you are owed for hours worked within two years back from the date you file suit or consent to join an existing lawsuit. For example, if an employee were to file an FLSA lawsuit on January 1, 2013, he could only attempt to recover pay for time worked after January 1, 2011. In some cases, where the employer is found to have willfully or recklessly violated the FLSA, you may be able to recover pay from three years prior to the date you file suit or consent to join an existing lawsuit. Because of these limitations, if you think you may be owed minimum wage pay it is important that you consult an FLSA lawyer as soon as possible. If you do not pursue the pay you are owed, some or all of your claim may be barred by the passage of time.

  • How much can I recover if I file suit?

    The FLSA allows you to recover the minimum wages you should have been paid within the time frames discussed above. In some cases, you can also recover liquidated damages in an amount equal to the wages you are owed. If you prevail in your claim, you may also be awarded attorneys’ fees and costs.

  • What can I do if my employer has refused or failed to pay minimum wage?

    If you are owed minimum wage, you should contact one of our experienced attorneys to help you recover the pay you are owed. Under the FLSA, employees who are “similarly situated” (i.e., they work in similar jobs and are subject to the same pay policies and procedures) can pursue their back wages through a “collective action.” This is often the most effective way for employees to recover their minimum wage pay, because it allows a group of employees the advantage of lower individual costs to vindicate their rights by the pooling of resources.