Employment Law FAQ

For answers to your employment law questions, please follow the links below:

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At-Will Employment

What is ‘At-Will’ employment?
“At-will” employment is a legal doctrine that applies to many employment relationships in Kansas and in the United States generally. It allows employers to fire its employees with or without cause, for a good reason, a bad reason, or no reason at all. Similarly, employees are free to quit at any time and for any reason. This means, for example, that your employer can fire you because it no longer needs your job position, or that you can quit because you do not like your new boss or you simply found a better job.

The reasoning behind this doctrine is that it is good for society because it allows for employers to make decisions based on their needs and it allows employees unrestricted mobility in the workplace. It also assumes that the employer and employee have equal bargaining power in the employment relationship, which very often is not true. The realities of the workplace and challenges to ‘at-will’ principles over the years have led to a number of exceptions. In general, while it is said that you can be fired for any reason, you cannot be fired for an unlawful reason, such as discrimination, retaliation, for whistleblowing or for exercising your right to benefits to which you are entitled.

Determining whether the reason you were terminated fits within the ‘at-will’ doctrine or is unlawful can be complicated. As a result, if you have questions about your termination you should contact an attorney immediately.

How do I know if I am an ‘At-Will’ employee?
Most employees in Kansas are ‘at-will’ employees. If you are not protected by a Collective Bargaining Agreement or did not sign an employment contract that describes the terms of your employment and the situations under which you can be terminated, you are most likely an at-will employee.
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Discrimination in the Workplace

What is the legal definition of discrimination? And what is a ‘protected class’?
‘Discrimination’ is defined as the treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit. The groups, classes, or categories are often referred to as ‘protected classes.’ In the employment context it is unlawful to discriminate against persons based on the ‘protected classes’ of race, age, sex, national origin, religion, or handicap. Kansas also protects individuals from discrimination based on sexual orientation. There are a number of federal and state laws that are intended to protect persons from employment discrimination – for example Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Kansas anti-discrimination statute, General Laws Chapter 151B.
My manager treats me differently than my co-workers. Do I have a claim of discrimination?
It depends. The reason why your manager is treating you differently than your co-workers will determine whether you have a claim of discrimination. If the reason is, for example, because of your race, gender, etc., or because you have a disability and asked for assistance, then you have a claim of discrimination. However, if he or she is treating you differently because of a personality conflict having nothing to do with your ‘protected class,’ then no matter how unfair or disrespectful the treatment is, it is unlikely that you have a claim. Determining the reasons for the treatment you are receiving and whether it is because of discrimination or not can be complicated. As a result, if you have questions about your work environment you should contact an attorney immediately.
I know that my employer is treating me differently because of my ‘protected class.’ Does my employer have to take any specific action for me to have a claim of discrimination?
In general, your employer is prohibited from taking action against you that affects the ‘terms, conditions or privileges’ of your employment. Common discriminatory actions are reduction in wages or hours, unequal compensation, bias in hiring, demotion, job reassignment, termination, and various types of harassment.
Is there a time limit to bring a claim for discrimination?

Yes. Time limits for filing claims are called statutes of limitations. In Kansas, employment discrimination claims must be filed with the Kansas Human Rights Commission (KHRC) and/or the federal Equal Employment Opportunity Commission (EEOC) before you can file a complaint in a court of law.

You must file your claim of discrimination with the KHRC within 300 days of the discriminatory practice you are complaining about. There is a 180-day period to file claims with the EEOC, although claims filed within the 300 days with the KHRC that are “dually filed” with the EEOC are considered timely under federal law as well.

Also, you must file your claim in a court of law within two years of the discriminatory practice you are complaining about.

If you do not file your claim within the required time period, you will lose your right to file your claim forever. Determining which time periods apply to your claim and where you must file can be complicated. As a result, if you believe you have been discriminated against by your employer you should contact an attorney immediately.

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Harassment Generally and Hostile Work Environment

I am being harassed constantly at work and believe that I am experiencing a hostile work environment. Do I have a claim against my employer?
Many employees are familiar with the terms ‘harassment’ and ‘hostile work environment’ but it is widely misunderstood what these terms mean under the law and what protections actually exist for bad behavior by co-workers and managers.

With respect to harassment generally, whether you have a potential claim against your employer depends on the reason you are being harassed. If you are being harassed because of your ‘protected class’ you may have a claim. If you are being harassed for another reason, such as due to a personality conflict or because your co-worker or manager is just plain mean, i.e., you are being bullied, you are unlikely to have a claim. There are efforts currently being pursued by groups and organizations for states to enact laws that will protect employees from bullying. At this time, however, if you find yourself in this unfortunate situation, there are very few protections for you.

If you are being harassed because of your ‘protected class,’ whether the harassment will rise to the level of what under the law is called a hostile work environment depends on the severity, recurrence, and pervasiveness of the harassment. One incident of harassment is not likely to rise to the level that the law requires. The exception is for an extreme act, such as an assault. How many incidents you must endure, for how long and how drastic of an effect those incidents must have on your work environment is very case-specific and requires evaluation by an expert.

If you are being harassed and believe you are experiencing a hostile work environment you should contact an attorney immediately.

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Sexual Harassment in the Workplace

What is the legal definition of sexual harassment?
Sexual harassment encompasses unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature. There are two types of sexual harassment claims under the law – quid pro quo (Latin for “this for that”) and hostile work environment. Quid pro quo sexual harassment occurs when submission to sexual advances or favors is required to obtain job benefits, such as an increase in pay or a promotion, or rejection of such conduct results in adverse employment decisions, such as a demotion or termination. Hostile work environment sexual harassment occurs when degrading or humiliating comments of a sexual nature are repeatedly made such that it creates an intimidating, hostile, or offensive work environment.

Whether the harassment you are experiencing will rise to the level of a hostile work environment depends on its severity, recurrence, and pervasiveness. One incident, such a comment by a co-worker that ‘you are a tease’ will not create a claim. The exception is for an extreme act, such as an assault. How many incidents you must endure, for how long, and how drastic of an effect those incidents must have on your work environment is very case-specific and requires evaluation by an expert.

Does it matter whether the sexual harassment I am experiencing is by my supervisor or a co-worker?
While sexual harassment is inappropriate and degrading no matter what the status of the harasser, there is a legal distinction for the purposes of liability. Your company is strictly liable for harassment by a supervisor. This means that if you are being harassed by your supervisor, the company is liable for his or her conduct regardless of who knows about the harassment or whether, for example, you reported it to human resources. If your harasser is a co-worker, however, your company may only be liable for the harassment if the conduct was reported to a supervisor or human resources and appropriate steps were not taken to cease the harassment.
Are there time limits for me to file a sexual harassment claim?
Yes. Sexual harassment is a form of discrimination. Click here for a discussion of time limits for filing claims of discrimination in the workplace.
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Constructive Discharge

Technically I resigned or ‘quit’ my job, but I had no other choice and I believe that my employer acted unlawfully toward me and forced me to quit. Is there anything I can do?
Possibly. There are circumstances where the law treats an employee who ‘quits’ or resigns as having been terminated. The legal term is a constructive discharge. While not all resignations can be treated as a constructive discharge, when the circumstances surrounding your employment put you in a position where any reasonable person would have done the same, you may qualify for this standard.

For example, is your employer forcing you to perform job duties that are in excess of your known physical limitations? Did your employer reduce your (but not your co-workers’) pay drastically in an effort to make you quit? Is the harassment you are experiencing causing you severe physical or emotional harm? These types of situations may qualify. However, determining whether your situation qualifies as a constructive discharge is very fact-specific and is a difficult legal standard to meet. As a result, it is prudent that before you resign you speak with an attorney to evaluate your particular circumstances.

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Family and Medical Leave Act (FMLA)

Who is entitled to FMLA coverage?
The FMLA protects only ‘eligible’ employees who work for ‘covered’ employers. An employer is ‘covered’ and required to comply with the FMLA if the company has at least 50 employees working within a 75-mile radius. An employee is ‘eligible’ if he or she worked for the employer for at least 12 months and worked at least 1250 hours in the 12-month period preceding the leave. The 12 months of employment need not be consecutive. These requirements leave many employees working at small companies and part-time employees or those newly hired not protected by the FMLA.
What are FMLA qualifying circumstances?
The FMLA provides “eligible” employees time off from work for:

1. An employee’s own serious health condition
2. To care for an employee’s family member with a serious health condition
3. The birth or adoption of a child
4. A “qualifying exigency” arising from a family member who is in the National Guard or Reserves being notified of an impending federal call or order to active duty

Not all illnesses, medical conditions, and service exigencies are FMLA-qualifying circumstances. An attorney at Swartz Law can assist you in determining whether your circumstance qualifies.

What is the legal definition of sexual harassment?
Sexual harassment encompasses unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature. There are two types of sexual harassment claims under the law – quid pro quo (Latin for “this for that”) and hostile work environment. Quid pro quo sexual harassment occurs when submission to sexual advances or favors is required to obtain job benefits, such as an increase in pay or a promotion, or rejection of such conduct results in adverse employment decisions, such as a demotion or termination. Hostile work environment sexual harassment occurs when degrading or humiliating comments of a sexual nature are repeatedly made such that it creates an intimidating, hostile, or offensive work environment.

Whether the harassment you are experiencing will rise to the level of a hostile work environment depends on its severity, recurrence, and pervasiveness. One incident, such a comment by a co-worker that ‘you are a tease’ will not create a claim. The exception is for an extreme act, such as an assault. How many incidents you must endure, for how long, and how drastic of an effect those incidents must have on your work environment is very case-specific and requires evaluation by an expert.

How much time off does the FMLA provide?
Under most circumstances, employees are entitled to a maximum of 12 weeks of leave from work in a 12-month period. If an employee qualifies for a servicemember FMLA leave, he or she may be entitled to up to 26 weeks of leave from work. Leave can be used at one time or “intermittently.” Intermittent leave can be for a week, a day, or even an hour.

If you are unable to return to work after you have exhausted your FMLA leave, your employer may have the right to terminate your employment. However, you may be entitled to an extension of leave time as a reasonable accommodation through other laws, such as the Americans with Disabilities Act (“ADA”) and Kansas’ Anti-Discrimination Statute, M.G.L. c. 151B. These situations are complicated and very fact-specific. You should discuss your situation with an attorney before you take any steps to rely on such extended protections.

Am I entitled to pay during my FMLA leave?
The FMLA does not require that an employer pay you for FMLA time off from work. However, if you have accrued paid time off (such as vacation or sick time) you should be able to utilize that during your FMLA leave. Also, your employer is entitled to require you to utilize your accrued time during your FMLA leave.
Will I lose my job if I take FMLA leave?
Not during your entitled 12 (or 26) weeks of FMLA leave. An employee who takes FMLA leave is entitled to reinstatement of his or her former positions or an ‘equivalent’ position upon returning to work after the leave. However, your right to job reinstatement is not unconditional. For example, you are not protected from a legitimate layoff. Also, your employer is not required to reinstate you if you are unable to perform the essential functions of your job. In this situation, you may be entitled to a job reinstatement through anti-discrimination laws that protect the disabled. These situations are complicated and very fact-specific so it is prudent to speak with an attorney before relying on any such protections.
Will I lose my health insurance or other benefits during my FMLA leave?
No. Your employer is required to maintain coverage for group health benefits during an employee’s FMLA leave.
I believe I experienced FMLA discrimination. What is my recourse?
You can file a lawsuit in court for an FMLA violation. FMLA violations include interference with or denial of an employee’s right to take an FMLA leave and retaliation against an employee for taking an FMLA leave or complaining about a denial of rights. Employees can also file a claim with the U.S. Department of Labor.
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Unpaid Wages

What are wages?
Wages include your salary or hourly pay, tips, earned and owed commissions, often bonuses, and other forms of ‘pay’ such as earned vacation time.
Is my company required to pay my wages immediately upon my termination?
Yes. Your company is required to pay you on the day you are terminated.
Is my company required to pay my wages immediately upon my resignation?
No. Your company is required to pay you in accordance with its next regularly scheduled pay cycle.
Is my company required to pay me unused vacation time upon my termination?
Yes. Unused, accrued vacation time is considered part of your wages.
Is my company required to pay me unused sick time upon my termination?
No. Sick time is not considered wages.
How much does my company have to pay if they are found liable for unpaid wages in court?
Violations of the Kansas wage and hour laws are subject to mandatory triple damages. This is so even where your company acted in good faith. However, the federal law, the Fair Labor Standards Act (FLSA), does not mandate triple damages. Such damages may be awarded if it is proven that your company willfully violated the law. Negligence and good faith violations are awarded actual unpaid wages.
Are there time limits for me to file an unpaid wages claim?
Yes. Time limits to file legal claims are called statutes of limitations. You must file your claim within the limitations period or else you lose your right to file the claim forever. Kansas and federal wage and hour laws set forth various time periods within which you must file depending on your claim. In addition, under Kansas law you must first file your claim with the Attorney General’s office. You should contact an attorney immediately if you believe you have such a claim.
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Independent Contractors

Am I an employee or an independent contractor?
In Kansas, a three-part test is applied to determine whether an individual may be classified as an independent contractor. You must be:

1. Free from control and direction by your employer in the performance of the service you provide,

2. The services you perform must be outside the usual course of business of your employer, and

3. The services you provide must customarily be an independently established trade, occupation, or business.

All three elements must exist for you to be classified as an independent contractor. Federal law uses a less rigorous “20 factor test” that focuses on the degree of control the employer exercises over the services or work performed. Determining whether you are an independent contractor can be complicated. If you are concerned that you are misclassified you should contact an attorney to evaluate your particular circumstances.

What does it mean for me to be an independent contractor?
Independent contractors are self-employed, they are not employees. As a result, they are not covered by and/or are treated differently than employees under various employment, labor and related tax laws. Employers sometimes misclassify persons as independent contractors (intentionally or unintentionally) to avoid offering job-related benefits otherwise available to employees, paying taxes such as Social Security, Medicare and federal unemployment insurance, and other liability. Also, independent contractors have to pay “self employment tax” because the employer is not making tax contributions.

For more information you can read the Kansas Attorney General’s Independent Contractor Advisory on our Resources page.

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Unemployment Benefits

Am I eligible for unemployment benefits if I am fired?
In general, you are eligible for unemployment benefits when you are fired as long as your employer’s decision to terminate you was not based on a violation of a uniformly enforced company policy and/or deliberate misconduct in willful disregard of your employer’s best interest.
Am I eligible for unemployment if I quit or resigned?
Generally, no. There are exceptions if you can show that there were compelling reasons that justified your resignation and that you gave your employer an opportunity to take reasonable steps to resolve the problem. For example, if you are being discriminated against, you report the discrimination to your employer and it fails to take any steps to cease the discrimination, you may be eligible for unemployment if you resign as a result. Resigning from your job under these types of circumstances may have unintended consequences on other legal claims. As a result, you should speak with an attorney about your situation before resigning.
Am I eligible for unemployment benefits if I am laid off and receive a severance package?
If you are required to release your employer from any claims you might have against it in order to receive your severance payment, you are probably eligible for unemployment benefits. If you are not required to sign a ‘Release of Claims,’ you are probably not eligible during the period you are receiving severance pay. Most employers require employees to sign a release that is included somewhere in your severance agreement. Make certain to read your severance agreement carefully to determine whether such a provision exists. If you cannot tell or do not understand any part of your agreement you should contact an attorney before signing it.

For more information go to our Resources page for the Kansas Division of Unemployment Assistance (DUA) website, the state agency responsible for unemployment benefits determinations.

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Severance Agreements

Can I file a claim against my employer after I sign a severance agreement?
Most likely, no. Most severance agreements include a ‘Release of Claims’ provision. This means that upon signing the severance agreement you are giving up your right to bring any claims against your employer. Make certain to read your severance agreement carefully to determine whether such a provision exists. If you cannot tell, do not understand any part of your agreement, and/or if you believe that you have a claim against your employer, it is prudent to seek the advice of an attorney before signing any severance agreement.
Can my employer demand I sign my severance agreement within a certain period of time or by a certain date?
Yes, with restrictions. A severance agreement is a contract that is being created between you and your employer, or soon to be former employer. Your employer has the right to only offer you the agreement for a certain period of time and to decide not to enter into the agreement with you if you do not accept its offer during that period. That being said, most severance agreements include a ‘Release of Claims’ where you are agreeing by signing to forever release your employer from any claims you might have against it. If your employer demands that you sign such an agreement immediately and does not give you any time to review it with an attorney, the release may not be enforced.

In addition, if you are age 40 or older, the Older Worker Benefit Protection Act (OWBPA) requires your employer to give you at least 21 days (and in some circumstances 45 days) to review the agreement. It also requires you to be given seven days after signing the agreement to revoke it.

Does it really matter whether I review my severance agreement with an attorney? Aren’t these agreements standardized?
It is true that many employers have standardized severance agreements. It is important to remember, however, that these agreements are contracts. You will be legally bound by the provisions in it and complaining later that you did not understand what you were signing will not help you. Your employer has in all likelihood had an attorney create the agreement to ensure that it is protected and that the agreement is enforceable. You should be equally prudent about making certain that your rights are also protected and that you understand what you obligating yourself to do and to refrain from doing under it. This is especially important when the agreement contains a ‘Release of Claims’ or restrictive covenants, most frequently in the form of non-competition and non-solicitation agreements.
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Non-competition (Non-Compete) and Non-solicitation Agreements

Are non-competition and/or non-solicitation agreements enforceable in Kansas?

It depends. Your agreement must be evaluated to determine whether it restricts general competition or is necessary to protect trade secrets or good will. The former will not be enforced. The latter will be enforced only to the extent it is reasonable in scope (length of time and geography) and it enforces the public interest. Whether or not such agreements are enforceable is very fact-specific. It is important to speak with an attorney who can assist in evaluating your particular agreement.

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