Glossary of Terms and General Terminology
Legalese is a difficult language to understand. It’s almost its own language that only lawyers speak. We understand that it can be confusing to most people. Here are some definitions for general legal terms for Employment Law. These are written specifically for employment law, so they may have different meanings for other forms of law.
Age Discrimination: Choice for hiring, termination or adverse employment action based solely on the worker’s age (over age 40).
Answer: An answer is filed in response to a complaint. In an answer, the defendant will either admit or deny allegations contained in the complaint.
Attorney’s Fees: If successful, Federal law allows for this to be paid by the employer as part of the employees damages.
Back-pay award: The difference between actual wages or salary paid and higher wages or salary paid retroactively, usually in an employment discrimination case.
Collective Bargaining Agreement: A contract between an employer and its employees generally negotiated by a union on behalf of all of the employees within its bargaining unit.
Complaint and Summons: These are the first papers filed in any lawsuit. The complaint will list the facts which the plaintiff believes supports her claims. The summons documents that the papers have been properly served.
Confidentiality and the Attorney-Client Privilege: Beginning with the initial consultation, everything you say to your attorney is confidential, whether or not you hire the attorney. Neither the attorney nor staff persons can ever disclose what you say. Exceptions to the attorney-client privilege are knowledge of crimes to be committed in the future.
Counter-Complaint: Sometimes a defendant has a claim for money owed or damages it believes is owed by the plaintiff. In such a case, the defendant sues the plaintiff for recovery of those claims. The defendant becomes a counter-plaintiff, and the plaintiff becomes a counter-defendant.
Deposition: A conference where the lawyer asks a party questions under oath. A court reporter records the answers and prepares a transcript. Hearing answers before trial allows lawyers to know more about the case. It also allows the lawyer an opportunity to eliminate asking certain questions, thereby shortening the trial. Both parties, their lawyers, and the court reporter are generally the only persons who attend depositions.
Disabled: A person who has a mental or physical impairment which substantially limits a major life activity, such as walking, seeing, hearing, or other major life activities. Disabilities also include mental impairments.
Discovery: At any time during the case, preferably at the beginning, a party may file pleadings asking for discovery to learn about certain facts. Interrogatories, Request for Production of Documents, Request for Admissions, and Depositions are all forms of discovery. Almost always, there should be discovery before trial. In most cases, it is best to review discovery before a settlement offer is proposed. Generally, a party must respond to filed discovery within thirty days.
Discrimination: Choice for action based upon a subjective or arbitrary criterion. Some discrimination is actionable: race, age, gender, etc. Some is not: competency, education level, prior work history, etc.,
Duties Test: For a position to be “except” from the FLSA, the position must be listed and the employee must actually perform the particular duty. The title of the job really does not matter as much as the actual job duties.
Employment at will Doctrine: At common law, all employment was at will—in other words, an employer could fire an employee for any reason. Laws which limit an employer’s ability to discipline or fire employees provide exceptions to this doctrine.
Equal Employment Opportunity Commission (EEOC): The federal agency which investigates and in some cases prosecutes Title VII claims (sex, race, religion, and national origin), Americans with Disabilities Act (ADA) claims, and Age Discrimination (ADEA) claims.
Exemptions: Some employees are exempt from the overtime pay provisions or both the minimum wage and overtime pay provisions. Exemptions are generally narrowly defined under the FLSA.
Family Medical Leave Act: An act of Congress to provide up to 12 weeks of unpaid leave for some workers to recover from certain illnesses and provide care for certain types of family members.
FLSA (Fair Labor Standards Act): Establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments.
Front-Pay Award: Prospective award of projected future earnings, usually adjusted for present value. The idea behind front pay awards is to cure future damages without disturbing current employees of the defendant employer.
Hours Worked: Covered employees must be paid for all hours worked in a work week. In general, “hours worked” includes all time an employee must be on duty, or on the employer’s premises or at any other prescribed place of work. Also included is any additional time the employee is allowed or permitted to work.
Independent Contractor: Under the FLSA, a person who is an independent contractor is not entitled to overtime pay from the person who hired them. First determine if you are an ”independent contractor”; then you can decide if you are owed overtime. Some criteria for being labeled an independent contractor include:
- The amount of control your employer has over you;
- If there is an opportunity for profit that is not controlled by your employer;
- The skill and effort required in the job; and,
- The permanency of the employment relationship
Injunction: At any time during a case. a party may ask for an order, usually temporary, preserving assets or protecting the party or the party’s property from immediate and irreparable harm.
Interrogatories: A set of written questions that must be answered in writing under oath.
Mediation: Mediation may be ordered by the court upon motion by either party or upon the courts own decision. It is a process whereby the parties meet with a neutral mediator who helps the parties settle all or part of their case.
Motion: A motion is a general term that describes a document that is filed and a procedure whereby the judge can rule on important questions during the case. For example, if discovery is overdue, a party will file a Motion to Compel Discovery. Generally, no witnesses will be heard. On most occasions, clients will not attend motion hearings.
Motion for Summary Judgment: Rule 56 of the Federal Rules of Civil Procedure, and most applicable state rules, provides for entry of a judgment of the court in favor of the party making the motion if all of the undisputed facts support all of the necessary elements of its claim or defense. For a Motion for Summary Judgment to be successful, the court must conclude that no reasonable jury could construe the facts in favor of the non-moving party, usually a defense tactic. If the defendant’s motion for summary judgment fails, the case typically proceeds to trial shortly thereafter.
Progressive Discipline: An employer’s policy to impose discipline based on a predetermined formula which progresses from lesser discipline, such as a warming or counseling, to more severe discipline, such as suspension or termination. The discipline is accompanied by written documentation. The idea behind progressive discipline is to provide an opportunity for the employee to correct performance issues over time, while giving the employer an increasing leverage. Most if not all progressive disciplinary policies provide for immediate termination for certain “major infractions.”
Race Discrimination: Choice for hiring, termination, or adverse employment action based solely on the worker’s race.
Reductions in Force: An employer’s program to cut the number of positions employed at a specific work location or company wide.
Regular Rate: Overtime is calculated at one and one-half times an employee’s regular rate of pay. Divide total pay, not just base pay, by the total number of hours worked. The total pay can include productivity bonuses and incentives for odd shift work.
Request for Production of Documents: A list of documents that must be organized and produced to the party filing the Request.
Retaliation: Action or conduct intended to punish or deter workers from seeking or invoking protection under state or federal employment laws.
Right to Sue Letter: A document issued by the EEOC declining to pursue an employment claim for an employee. The employee then has 90 days following receipt of the letter to file a Complaint in Federal District Court; otherwise the claim is extinguished forever and may never be pursued again.
Right to Work Doctrine: Stale law which prohibits unions or employers from requiring union membership as a condition to employment. An employee who chooses not to join a properly qualified union is not required to do so, but may be bound by the union’s collective bargaining agreements with the employer. The non-union employee may also be entitled to some union benefit depending upon the wording of the collective bargaining agreement.
Service: Before a case is started, the defendant must be served with the papers which give the defendant notice that a lawsuit has been filed. The Sheriff or a private process server will perform this function. A party or lawyer cannot serve lawsuits.
Severance Package: An agreement between an employer and an employee which contains the terms under which the employee’s employment will be terminated. Usually contains a release of all known and unknown claims by the employee against the employer in exchange for a sum of money.
Sexual Harassment: Offensive conduct which is directed at a worker due to the worker’s gender. Such conduct is actionable if it affects the worker’s employment performance.
Statute of Limitations: The right to sue expires with time. The statute of limitations varies depending on what type of claim you have.
Termination: The ending of the employer/employee relationship. Terminations may be voluntary, initiated by the employee to pursue another opportunity. Terminations may also be involuntary, initiated by the employer for economic, disciplinary, or other reasons.
Whistle Blowing: Act of worker to report criminal acts of employer to proper authorities. In most states does not include notifying the media alone.
Workweek: A workweek is a period of 168 hours during 7 consecutive 24-bour periods. It may begin on any day of the week and at any hour of the day established by the employer. Generally, for purposes of minimum wage and overtime payment, each workweek stands alone; there can be no averaging of 2 or more workweeks. Employee coverage, compliance with wage payment requirements, and the application of most exemptions are determined on a workweek basis.