Lopez & Wu
 

DISCRIMINATION AND RETALIATION

The attorneys at Lopez & Wu have represented employees in discrimination cases in federal and state courts in Virginia, Washington DC, and Maryland.  We realize that your job is important to you and we will help you enforce your civil rights under federal and state anti-discrimination laws. 

Federal laws such as Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, the Americans with Disabilities Act, and the Pregnancy Discrimination Act protect employees or job applicants from discrimination due to: 

  • Race

  • Color

  • National Origin

  • Sex/gender

  • Sexual Harassment

  • Pregnancy

  • Religion

  • Age

  • Disability or perceived disability

  • Retaliation due to participation in protected EEO activity

State laws sometimes give employees more protection.  For example, the District of Columbia protects employees from discrimination based on their sexual orientation, family responsibilities, personal appearance, matriculation, or political affiliation.  If you have suffered from an adverse employment action or discriminatory act by an agency, such as: 

  • Termination

  • Failure to hire or promote

  • Denial of an award

  • Denial or training

  • Suspension

  • Received unequal pay

  • Harassment

  • Hostile work environment

  • Retaliation

  • Denial or a reasonable accommodation for your disability

Additionally, if you have informally or formally complained to a supervisor or a human resources representative about discrimination you personally experienced or observed, Title VII protects you from retaliation.  Therefore, if your employer takes a negative employment action against you soon after you explicitly complained about discrimination, you may have a retaliation case. 

If you are or have experienced discrimination or a wrongful termination based on a prohibited factor that you are thinking about reporting, or if you have already reported discrimination and are facing retaliation, contact Lopez & Wu for an evaluation of your case with no further obligation. 

The attorneys at Lopez & Wu have represented employees in discrimination cases in federal and state courts in Virginia, Washington DC, and Maryland.  We realize that your job is important to you and we will help you enforce your civil rights under federal and state anti-discrimination laws.

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FMLA

Enacted in 1993, the Family and Medical Leave Act (“FMLA”) provides up to 12 weeks of unpaid leave to eligible employees who have a serious health condition, who need to care or a parent, child or spouse with a serious health condition, and family members of military personnel called to active duty.  The FMLA also allows for leave for the birth or adoption of a child or the placement of a foster child in your home.  Although leave provided by the FMLA is unpaid, the FMLA protects your job when you return to work.  If your employer takes a negative employment action against you, the FMLA also protects you from retaliation. 

The FMLA can be complicated.  The FMLA doesn’t cover all employees.  The attorneys at Lopez & Wu can help you determine your rights under the FMLA. 

 

What are some situations when I can take FMLA leave? 

A covered employer must grant eligible employees up to 12 work weeks of unpaid leave in a 12 month period for one or more of the following reasons: 

  • Birth of a child and care of a new child;
  • When you have adopted a child or are caring for a newly placed foster child;
  • Care for an immediate family member with a “serious health condition”; OR
  • When you are unable to work because of a  “serious health condition”. 

In January 2009, due to the United States’ military commitments around the world, Congress added protection for employees who take leave when a parent, spouse, parent, or child has been called for active duty.  Military-related leave does not necessarily extend to 12 weeks. 

  • The lawyers at Lopez & Wu can evaluate your situation and determine the amount of leave you may take. Situations when you may take leave due to deployment or impending deployment include: 

  • 7 calendar days of leave to take care of any issue if the Armed Forces notify a family member of a call or order to active duty 7 days or fewer before the scheduled deployment;
  • Leave to attend any official ceremony, program, event, family support or assistance program, or informational briefing sponsored by the military relating to an active-duty family member;
  • You may take leave to arrange for immediate childcare, make other school arrangements, or to attend meetings with school officials;
  • Leave to make financial and legal arrangements related to an active-duty member’s account;
  • Time to attend counseling with a social worker or therapist for yourself or with a service member;
  • You may take 5 days of leave to be with a family member who is on rest and recuperation leave; OR
  • You may take leave for any other issues arising from the active duty status of a family member if you agree to the terms of leave with your employer. 

 

How do I know if my employer needs to follow the rules for the FMLA? 

You must work for an employer with 50 or more employees within a 75 mile radius of your workplace. 

 

Am I eligible to leave under the FMLA? 

The FMLA protects employees who have: 

  • Worked for the employer for at least 12 months AND

  • Worked at least 1,250 hours during the 12 months immediately preceding the start of the FMLA leave. 

 

How do I tell my employer I want to take FMLA leave? 

If you anticipate that you will need to take leave, you need to provide your employer with 30-days notice.  If you can not foresee a serious health condition, you should inform your employer “as soon as practicable.”  The FMLA does not require you to specifically state that you want to take leave under the FMLA. 

When you request FMLA leave, your employer may request a medical certification supporting your leave request.  A representative of the employer, but not your immediate supervisor, may directly contact your medical provider to authenticate the certification form or obtain a clarification. 

 

What is a “serious health condition”? 

A serious health condition could include an illness, injury, impairment, or physical or mental condition that involves: 

  • An overnight stay at a health care facility;
  • Incapacity of more than 3 days and two or more treatments by a health care provider;
  • Any period of incapacity due to pregnancy ore prenatal care;vIncapacity due to a chronic serious health condition that require at least 2 visits to a health care provider (e.g., asthma, diabetes, epilepsy); OR
  • Any period of incapacity that is permanent or long-term due to a condition that may not be effective (e.g., Alzheimer’s, stroke, terminal illness).

 

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USERRA

Enacted in 1994, the Uniformed Services Employment & Reemployment Rights Act (“USERRA”) is important and more relevant since 2001, when almost 700,000 National Guard and Reserve members have been called to active duty. 

 

Who does USERRA protect? 

USERRA protects employees who serve in military service, including the National Guard and Reserve. 

With limited exceptions, any private or public employer who employs at least one employee must comply with USERRA. 

 

How does USERRA protect employees?

USERRA forbids discrimination against service members who have been discriminated against in hiring, retention, promotion, or receipt of benefits. 

If you are called to serve in the uniformed services, USERRA requires that your employer reemploy you in the position you occupied prior to service.  When you return, your employer must grant you seniority and other rights that you would have earned if you had been employed during your term of service.  

After your employer places you in your former position, you are protected from premature termination for a limited period of time.  If your employer attempts to terminate you during the protected period, the termination must be “for cause.”  If you have asserted your rights under USERRA, you are also protected from retaliation.

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FEDERAL EMPLOYEES 

The attorneys at Lopez & Wu admire federal employees for their dedication and commitment to public service.  Although we are based in the Washington, D.C., area, we represent federal employees around the world.  Regardless or whether you are a teacher in Korea working for the Department of Defense Education Activity or a State Department employee stationed in Sri Lanka, you have the same rights as your domestic colleagues.  We will help you. 

In spite of the additional protections federal employees enjoy, you need legal representation to help guide you through the complicated federal administrative process.  Federal agencies establish EEO offices, Civil Rights Offices, and Inspectors General, but they are not your advocates.  It is important for your case to obtain legal representation as early as possible in the process before you waive rights or miss opportunities to defend yourself.  Also, the earlier you obtain representation, the faster we can help you obtain a favorable result through settlement or negotiation. 

We have over a 10 years of combined experience in representing federal employees in discrimination, retaliation, whistleblower, and adverse action cases.  With our specialized expertise in federal employment cases, we will help you enforce your workplace rights.  Through the years, we have become familiar with administrative judges at the Equal Employment Opportunity Commission and the Merit Systems Protection Board and many agency representatives.  With this knowledge, we are able to develop negotiation and trial strategies that will result in the best outcome for your case. 

 

Discrimination by a Federal Agency

 

How am I protected from discrimination? 

Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the Rehabilitation Act protect employees or job applicants from discrimination due to:

  • Race

  • Color

  • National origin

  • Sex/gender

  • Pregnancy

  • Religion

  • Age

  • Disability or perceived disability

  • Participation in protected EEO activity

  • Sexual orientation 

 

When can I contact my agency about discrimination? 

If you have suffered from an adverse employment action or a discriminatory act by an agency, such as: 

  • Termination

  • Failure to hire or promote

  • Denial of an award

  • Denial or training

  • Suspension

  • Received unequal pay

  • Sexual harassment

  • Hostile work environment

  • Retaliation

  • Denial or a reasonable accommodation 

On the basis of prohibited discriminatory factors, you must follow agency procedures and contact the EEO office to file an informal complaint. 

 

What happens after I contact the EEO office about discrimination? 

An EEO counselor will contact you and you will begin informal EEO counseling.  It is important for you to have legal representation at this early stage because you want to ensure that you communicate important facts about your case to the EEO office.  Also, although you are only at the beginning of the process, you may be able to resolve your case against the agency using alternative dispute resolution or mediation.  When you have legal representation, we can advise you during the mediation and assist you in making an informed decision concerning settlement. 

If you cannot settle your case, the EEO counselor will provide you information on how to file a formal complaint of discrimination against the agency.  When you file a formal complaint, you are identifying the specific issues and incidents that give rise to your claim of discrimination.  The attorneys at Lopez & Wu will assist you in drafting a concise description of the discrimination you suffered. 

 

What happens after I file a formal complaint of discrimination? 

If the agency accepts your formal complaint of discrimination, an EEO investigator will contact you to gather facts concerning your case.  This is yet another crucial stage of the complaint process when you will need legal representation.  The attorneys of Lopez & Wu, LLC, have guided over 100 clients through EEO investigations.  The results of an investigation will contain important facts and documents that are admissible at an EEOC administrative hearing or in federal trial courts.  We will make sure that the EEO investigator conducts a thorough investigation and you are given the opportunity to tell your side of the story.  At the conclusion of the EEO investigation, you can choose to have your case heard in front of an Equal Employment Opportunity Commission administrative judge or a federal trial judge. 

 

What happens after I request a hearing with an administrative judge or go to federal court?

Whether you request a hearing with an EEOC administrative judge or are going to federal court, it is imperative that you obtain legal representation.  In particular, at the EEOC, when an administrative judge has been assigned to your case, the hearing process starts and litigation begins immediately.  If you wait until after the EEOC assigns an administrative judge to obtain an attorney, it could have a negative impact on your case.  We cannot stress enough the importance of retaining a lawyer early in the EEO process.  You will need as much leverage as you can muster when fighting for your civil rights.  EEOC administrative judges have many cases to decide and your case can easily get lost in the shuffle.  With our representation, you will receive crucial strategic advice that will help you obtain outstanding results. 

 

Removals, Suspensions, Demotions, and Other Adverse Actions by the Agency

 

My agency gave me a proposed removal or suspension, what are my rights?

Depending on your status as a federal employee, if your agency proposes your removal, a suspension of 14-days or more, a reduction in grade and pay, or a furlough of 30 days or less, the agency must follow rules and procedures before imposing the adverse action against you. 

 

How can you help and when should I seek legal representation? 

You will receive notice of the adverse action in the form of a proposal letter.  The proposal will describe the charges against you, the facts supporting the charges, and your right to provide an oral and written reply to the charges.  The letter will allow you a limited amount of time for you to review documents supporting the proposed action.  The agency will also identify the date when you will be given the opportunity to present an oral and written reply. 

The attorneys at Lopez & Wu have represented many federal employees through the reply process.  Having legal representation as soon as you receive the proposal letter will give you the best chance at having the agency rescind the proposed discipline or impose a lesser form of discipline.  A lawyer will know the type of evidence to request from the agency prior to the oral and written replies.  With this information, an attorney will present a compelling an oral reply and draft an persuasive written reply to the deciding official. 

 

Why give an oral and written reply when I believe that the agency has already made-up its mind to discipline me?

Do not underestimate the effect an oral reply can have on a deciding official.  During the oral reply, you are no longer a simply a subordinate who allegedly committed the charges in the proposal letter.  We can help you make a presentation that emphasizes your service and dedication to the agency.  We can convince the deciding official that the charges are unfounded and that you deserve another chance. 

Finally, you must identify affirmative defenses to the charges at the oral reply stage.  Otherwise, you may be deemed to have waived those defenses if you appeal the matter to the Merit Systems Protection Board. 

 

What happens if the deciding official imposes a suspension over 14 days, a reduction in pay, a demotion, or a removal? 

30 days after the effective date of the adverse action, you must file an appeal to the Merit Systems Protection Board or MSPB.  At the MSPB, administrative judge will decide whether to sustain the adverse action, reverse the adverse action, or impose a lesser form of discipline. 

When the MSPB acknowledges receipt of your appeal, the hearing or litigation process progresses very quickly.  You will need legal representation to navigate the complicated procedure at the MSPB.  At Lopez & Wu, we have the experience to represent you at MSPB hearings, thus giving you the best chance of retaining your job or keeping your official personnel file free of adverse actions.

 

Performance Related Discipline

 

I’ve been placed on a Performance Improvement Plan (“PIP”), what should I do? 

If your supervisor has deemed your performance to have been Unacceptable in one or more critical job elements, the agency must notify you and give you the opportunity to improve by presenting you with a PIP.  The PIP identifies areas of your work that must improve and also ways to improve performance.  If your performance remains Unacceptable at the end of the PIP, your agency may demote you or remove you.  

When your agency places you on a PIP, both you and your supervisor have responsibilities. Your supervisor must structure assignments, instruction, and feedback to help you meet the Fully Successful performance level. 

 

If the PIP gives me advice on how to improve, why do I need legal assistance? 

It is important to consult an attorney with experience in federal sector law to help you understand the requirements of the PIP and how to document your improvement during the PIP. Additionally, your supervisor has responsibilities during the PIP; therefore, we can ensure that the agency is fulfilling its obligations to help you improve and not simply “go through the motions.”  We can assist in providing you with advice on how to communicate with your supervisor during the PIP and how to keep a written record of your performance. 

 

What if the agency decides that I didn’t improve after the PIP? 

If you improve after the PIP, the agency will not demote or remove you.  However, if your performance does not rise above Unacceptable, the agency can propose a demotion or removal. 

If your agency proposes your demotion or removal, you will be given the opportunity to present and oral and written reply to a deciding official.  This is the point when you can present your case, along with all the evidence you’ve been gathering, that your performance has improved, to the deciding official. 

If the deciding official sustains the demotion or removal, the agency must give you notice on how to file an appeal to the Merit Systems Protection Board.  

 

My agency has proposed my removal for performance, but I haven’t received a PIP.  Can the agency do this?

Yes.  The agency may propose a demotion or removal without using a PIP if they decide to use procedures for alleged misconduct.  For the agency to succeed in demoting or removing you without a PIP, they must satisfy a higher standard of proof.  Additionally, the penalty of demotion or removal may be reduced by the deciding official or the Merit Systems Protection Board. 

If you are subject to an adverse action for performance, you should seek legal representation to guide you through the process, whether the agency gives you a PIP or not.  Beyond identifying the process used by the agency to discipline you, we can help you during the PIP, for the oral and written replies, and appeals to the MSPB.

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WHISTLEBLOWERS

However, to obtain protection as a whistleblower, you must satisfy various requirements, including, actual disclosure of the fraud, waste, or abuse to someone in management other than the person engaging in wrongdoing.  If the wrongdoer finds out that you are the person who reported the fraud, waste, or abuse, and subsequently retaliates against you by taking a negative employment action against you, you can file a complaint to either the Department of Labor (for non-governmental employees) or the Office of Special Counsel (for federal employees). 

If you are a non-governmental employee, state and federal laws may protect you as a whistleblower if you report environmental, health, or safety violations, and you then suffer a negative employment action.  

The Whistleblower Protection Act protects federal employees who report fraud, gross waste, gross mismanagement, abuse of authority, or violation of federal law, rule, or violation by a federal agency.  Although your belief of the federal agency’s suspect activity must be reasonable, it does not necessarily need to be an actual violation.  You must report your reasonable belief of wrongdoing to someone in management other than the person initiating the violations such as your agency’s Inspector General.  After you have made your complaint, if the manager finds out about your complaint and takesa negative employment action against you, you can file a complaint with the Office of Special Counsel. 

Gaining protection as a whistleblower requires more than just reporting wrongdoing.  The law requires that a prospective whistleblower satisfy many requirements before deemed a whistleblower.  If you become aware of waste, fraud, or abuse by your employer, it is best to contact Lopez & Wu as soon as possible and obtain advice on how to proceed with your complaint and still gain protection as a whistleblower.

 

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NON-COMPETES

Usually, you are free to leave an employer to work for another employer; however, your employer may have you sign a written contract preventing you from working for a competitor. For professionals, executives, scientists, engineers, and salespeople working in highly competitive industries in the Washington, DC metropolitan area, employers often have employees sign these “covenants not to compete” at the start of the employment relationship. 

If you are subject to a non-compete agreement, it may not necessarily be enforceable against you. State courts do not look favorably upon an employer’s ability to prevent an employee from pursue his or her life calling.  In determining whether a covenant not to compete is enforceable, courts could consider the following: 

  • Does the employer have a legitimate business interest that allows for a restraint on competition?
  • Is the geographic limitation in the non-compete agreement reasonable?
  • How long are you precluded from taking a job with a competitor or working in the same field?
  • What job duties or activities are you precluded from doing for a competitor or in your field of expertise? 

If you are subject to a non-compete agreement and want to pursue your career with a new company in the same or similar field, an experienced attorney will be able to advise you on whether the non-compete agreement is enforceable and present various options. 

The attorneys at Lopez & Wu have expertise in counseling individuals on the enforceability of non-compete agreements.  We have been successful in assisting employees in negotiating with former employer to obtain waivers or challenging the validity of such agreements.

 

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SEVERANCE & EMPLOYMENT AGREEMENTS

If you have an employment contract with your employer or have been asked to sign a contract, it may be difficult to interpret the complex terms without the assistance of an employment attorney.  Not only could the contract affect your immediate employment, but if your employer offers you a monetary severance, the contract could affect future job opportunities. 

Generally, employment is considered “at will,” but an employer’s right to terminate you may be limited by an actual or implied contract.  For example, a contract could specify a length of time for employment or allow termination only “for cause.”  Employment contract issues also arise when your employer breaches the contract by taking negative employment action against you in violation of your contract, an employee handbook, or other mandatory company-wide policies.  If you have completed a project or duty in exchange for an employer’s promise to compensate you, you may have a cause of action under contract law.  

If you are a salesperson and your employer has denied you a commission or bonus based upon a contractual agreement or performance of a duty, we have years of experience obtaining positive results for employees who are owed substantial compensation.  Lopez & Wu has had particular success recovering payment for services under the Maryland Wage Payment and Collection Law. 

After reviewing your contract or severance, the attorneys at Lopez & Wu will analyze the terms and advise you on the options available to you.  With our experience in negotiation, we can potentially increase the compensation and benefits for which you are entitled.  We will provide practical advice and present a variety options for you to make an informed decision. 

We advise and represent individuals and negotiate with employers with respect to the full-range of employment-related contracts, including: 

  • Commission or sales-based contracts; 

  • Non-solicitation agreements;

  • Confidentiality agreements; 

  • Executive employment agreements;

  • Deferred compensation agreements; 

  • Severance agreements; 

  • Employment and benefits contracts;

  • Stock-option agreements; and

  • Mandatory arbitration agreements. 

 

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WAGES & OVERTIME

Enacted in 1938, the Fair Labor Standards Act (“FLSA”) provides workers with a minimum wage and payment of overtime.  Despite being in effect for over 70 years, some employers still fail to pay the minimum wage or overtime to their employees.  However, the FLSA does not entitle all employees to a minimum wage or overtime.  Thus, some employers try to avoid their obligations under the FLSA by improperly categorizing employees as being exceptions to the FLSA. 

The FMLA can be complicated. The FMLA doesn’t cover all employees. The attorneys at Lopez & Wu can help you determine your rights under FMLA. 

 

What kind of employers must follow the FLSA? 

First, the employer must have a business that engages in trade, business, or movement of goods or money from one state to another.  An employer that produces goods moved from one state to another must also comply with the FLSA. 

Second, the FLSA applies to employers who conduct at least $500,000 in business per year. 

Some employers, such as hospitals; primary schools; secondary schools; colleges and universities; and state, federal, and local agencies, are not covered by the FLSA. 

 

What is the minimum wage? 

As of July 24, 2009, the federal minimum wage is $7.25 per hour. 

 

When must an employer pay me overtime? 

Subject to exceptions, the FLSA requires an employer to pay one and one-half times the regular rate of pay for each hour over 40 hours in a week.  To determine when you are entitled to overtime, you should calculate the number of hours worked according to a seven-day workweek.  If you are not an hourly employee, you may still be entitled to overtime, depending on whether the FLSA categorizes you as a type of “exempt” employee.  

 

Am I protected by the FLSA? 

FLSA does not protect all workers.  For example, the FLSA does NOT protect the following types of workers: 

  • Independent contractors;

  • Executives;

  • Administrative employees who perform office work related to management or general business operations for an employer’s customers;

  • Employees who exercise discretion and independent judgment with regard to business matters;

  • Professional employees; OR

  • Outside sales employees. 

How do I enforce my FLSA rights? 

If you suspect that your employer has not paid you either the minimum wage or overtime, you may file suit in federal court for unpaid wages.  You must file a lawsuit in court within two years of when the employer violated the FLSA.  If the employer has willfully violated the FLSA, you have three years to file a FLSA lawsuit. However, some states have wage and hour laws that my provide you with more protects than the FLSA.  Please be aware that state deadlines to file court cases may be shorter than FLSA deadlines. 

If you prevail in court, you will receive the unpaid wages, but also liquidated damages equal to the amount of wages owed, and attorneys fees and costs.

 

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SEXUAL HARASSMENT

You may have a claim of discrimination if your supervisor or a coworker is harassing you because of your race, gender, national origin, age, disability, religion, or because you have previously filed a discrimination complaint. 

One of the more common forms of harassment is sexual harassment.  There are two types of sexual harassment: hostile work environment and quid pro quo. 

Sexual harassment that results in a hostile work environment occurs when a manager or coworker engages in repeated mistreatment or engages in a single instance of severe humiliation or threat of harm.  If the repeated harassment or single severe conduct affects your ability to work, courts may consider your working environment to be hostile.  

The other type of harassment occurs when a manager with authority over you offers you favorable job terms in exchange for sexual favors.  The most concrete example of quid pro quo sexual harassment occurs when your supervisor states that you will be fired unless you have sexual relations with that supervisor. 

If you believe you have been subjected to sexual harassment due to a hostile work environment or as a quid pro quo for sexual favors, you should examine your employer’s internal complaint procedures in order for you to report the sexual harassment.  You must give your employer the opportunity to investigate your report of harassment under its anti-sexual harassment policy, if such a policy exists, or actually stop the harassment. 

If you have been subject to sexual harassment, please contact Lopez & Wu so we may evaluate your employer’s anti-sexual harassment policy or determine whether your employer has taken adequate measures to stop further harassment.

 

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