Employment Law

What is employment law?

Employment law deals with the relationship between employers and employees. Employment law includes a broad scope of issues, including wage and pay, discrimination, sexual harassment, wrongful termination of employment, workplace safety, whistleblowing, and more. 

Employee Wage and Pay

State and federal wage and hour laws require employers to fairly compensate employees. This requires compensation that satisfies minimum wage requirements, overtime pay when hourly employees work more than 40 hours in a week, mandatory breaks, and more. If you have been deprived of fair pay, time off for breaks, or overtime, you may have a claim against your employer.  Wage claims will be barred unless filed within a short 180 day deadline, so it is imperative to act promptly.   Consultations at Garden City Law are usually free of charge for employee compensation issues, and attorney fees may be recovered as part of your claim.  Call or use the form below to email your inquiry. 

Workplace Harassment and Discrimination

What is workplace discrimination?

Workplace discrimination is unlawful conduct in the workplace that happens because a person is part of a protected class (age, race, color, national origin, religion, creed, disability, marital status, or sex).  If based on a protected class, it is unlawful to discharge, refuse to hire, or to discriminate against a person with respect to compensation or privileges of employment, deny reasonable maternity leave, or refuse to reinstate an employee following maternity leave.  It is also unlawful for employers to retaliate against employees for filing a discrimination complaint, participating in an investigation, and/or challenging discriminatory practices.   

What is workplace harassment?

While being bothered by a supervisor or co-worker is frustrating, it does not necessarily mean you have a legal claim for workplace harassment.  Workplace harassment is a form of employment discrimination.  To qualify as discrimination under federal law, harassment must be based upon a protected class, such as race, color, national origin, gender, pregnancy, age, religion, disability, and genetic information. Montana’s Human Rights Laws prohibit similar discriminatory conduct as the federal law, but also includes marital status as a protected class. 

Illegal workplace harassment occurs when an employee suffers unwanted conduct based on their protected class, and the conduct created a hostile work environment, the employee was forced to endure the conduct to keep their job (or the employee voluntarily terminated employment because of a situation created by an act or omission of the employer which an objective, reasonable person would find so intolerable that voluntary termination is the only reasonable alternative). 

Illegal harassment may come in many forms and from many sources.   Verbal harassment may include name-calling, insults, sexual innuendos, racial slurs, jokes, amongst other conduct.  Physical harassment may include touching or groping which is often associated with sexual harassment, but may also include conduct like pushing, hitting, slapping, or kicking.  The source may be a co-worker, supervisor or even an non-employee like a customer or contractor.  Perhaps most intimidating is harassment from a supervisor using their position to subject employees to discrimination, leaving the employee feeling vulnerable and trapped.

This is not an exhaustive list of unlawful harassment and discrimination examples.  Each case of workplace harassment is unique, and whether harassment constitutes illegal discrimination is based on the facts of the case.  Contact Garden City Law (406) 926-6996 for a free consultation.  

What is the procedure for pursuing a discrimination claim in Montana law? 

Pursuing a discrimination claim starts with filing a complaint with the Montana Human Rights Bureau.  There is no charge for filing this complaint.  The Human Rights Bureau will provide the employer an opportunity to respond, investigate the claim, and issue a written determination regarding the merits of the case (i.e. whether there is reasonable cause to believe that a preponderance of the evidence supports the complaint allegations). 

If the written determination (referred to as a “Final Investigative Report”) finds reasonable cause supporting the complaint, the Human Rights Bureau will facilitate mediation.  If the case does not get resolved, the complaint (but nothing else) is sent to the Hearings Bureau for a contested hearing.  The Hearings Bureau conducts a hearing, decides the case, and enters orders to compensate for harm and correct discriminatory practices. 

If the Final Investigative Report finds there is not reasonable cause supporting the complaint, the charging party may (a) appeal that decision to the Human Rights Commission within 14 days or (b) file the complaint in district court within 90 days. 

What is the time limit to file a discrimination or harassment claim? 

Under Montana law, complaints are generally barred unless filed within 180 days of the alleged discrimination or harassment.  However, the deadline may sometimes be extended by as much as 300 days if the victim tried to resolve the issue by following the employers's written grievance procedure.   

What is the Equal Employment Opportunity Commission's involvement in this process?

When a victim files an employment discrimination complaint under state law, and the employer has a enough employees to be covered by certain federal employment discrimination laws, the victim may also file a complaint with the Equal Employment Opportunity Commission. This means that a victim has a complaint under both state and federal laws. However, not all types of discrimination are also covered under federal laws. For example, Montana law protect persons who are discriminated against based on marital status, but marital status is not a protected class under federal employment discrimination law.

I am an employer.  What steps can I take to protect my employees from discrimination, sexual harassment, and other forms of harassment? 

To protect employees from discrimination, sexual harassment, an other forms of harassment, employers should develop, implement, and enforce discrimination policies and grievance procedures. Planning, training, and implementing comprise an investment that will serve to protect your employees and may prevent liability for discrimination violations.

Call 406-926-6996
To Schedule Your Free Consulation Today

Wrongful Termination of Employment.

When is an employment discharge wrongful? 

Wrongful termination occurs when (a) an employee is discharged without “good cause” after the probationary period, (b) discharge is in retaliation for the employee refusing to violate public policy or for reporting a violation of public policy, or (c) the employer violated the express provisions of it personnel policy when discharging the employee.

What does good cause mean?  

An employer does not have “good cause” to discharge employee unless it has reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason.   An employee may either prove that the employer’s given reason for the discharge is not “good cause” in and of itself, or that the given reason “is a pretext and not the honest reason for the discharge.” Johnson v. Costco Wholesale, 2007 MT 43, ¶¶ 27–28.

What is constructive discharge?

If you resigned or terminated your employment because of an intolerable work environment, you may have a claim for constructive discharge.  Constructive discharges are included within the definition of discharge under Montana’s Wrongful Discharge Act. Constructive discharge means an employer creates a situation in which “an objective, reasonable person would find [the work environment] so intolerable that voluntary termination is the only reasonable alternative.” 39–2–903(1), MCA.   Constructive discharge may occur when an employer fails to adequately address discrimination or harassment issues.  Ostracizing and penalizing an employee for filing a grievance and sticking up for their rights has been affirmed as constructive discharge. Harrell v. Farmers Educ. Co-op Union of Am., Montana Div., 2013 MT 367, ¶ 77.

What damages may be awarded for wrongful discharge?

Wrongfully discharged employees can recover up to four years of lost wages and benefits, plus interest.  This maximum is reduced by earnings after discharge, including amounts that the discharged employee could have earned with reasonable diligence, but not including reasonable search and relocation costs.  An individual who obtains a new job paying more than their old job may effectively be precluded from receiving any damages.  However, if an ex-employee works a job that would not preclude the original job (i.e. a graveyard shift), earnings from the new job should not be used to offset damages.

Damages for pain and suffering, emotional distress, and any other damages not authorized by 39-2-905 are not allowed.   

Attorney fees may sometimes be recovered.  For example, attorney fees may be recovered by a prevailing party if the other party refused a valid offer to arbitrate pursuant to 39-2-915.

May punitive damages be awarded? 

Punitive damages are proper when there is clear and convincing evidence the employer engaged in actual fraud or actual malice in the discharge of the employee, and when discharge is in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy.  Harrell v. Farmers Educ. Co-op Union of Am., Montana Div., 2013 MT 367, ¶ 82-86.

What should I do if I was wrongfully discharged? 

First, make sure to follow any grievance procedures (in general, employees must follow internal procedures for appealing a discharge before filing suit).  Second, prepare and maintain a chronology of significant events and correspondence, including the date you started working, a description of any conflicts, your work performance, any bonuses/raises/promotions/awards/positive feedback you received, whether any prior disciplinary actions were taken, any reports or grievances you made to your employer, the date you were terminated (or constructively discharged), the reason given for your discharge.  This will protect against facts being forgotten, expedite the evaluation and investigation of your case, and ultimately strengthen your claim.  Third, compile and maintain a copy of any documentation related to your discharge, including texts, emails, letters, your employee manual (if any), etc.  Fourth, contact an employment law attorney to understand and protect your rights.  

What is the statute of limitations for wrongful discharge claims.  

Wrongful discharge claims have a short one-year statute of limitations.  Your claim will be barred if not filed within this deadline, so it is imperative to act promptly.  The limitations period may be tolled for up to 120 days while an employee attempt to resolve the matter through internal grievance procedures.

Whistleblowing

Some employers retaliate or punish employees for reporting illegal or unethical practices of their employer. If you have lost your job or been punished for reporting unethical or illegal conduct of your employer, contact Garden City Law to discuss and make sure your rights are protected.

Workplace Safety

Workplace safety and health standards are enforced by the Occupational Safety and Health Administration (OSHA).  Violations of OSHA regulations expose employees to harm.  When this happens, employers should be held legally responsible for their willful or negligent disregard of the law.

If you have been wronged in the workplace, you want an attorney who will aggressively represent your interests in a professional and compassionate manner.  Call André Gurr at Garden City Law to discuss and protect your rights.  Consultations are confidential, and usually free of charge. As an experienced and knowledgeable employment law attorney in Missoula, André provides legal services throughout Western Montana, including Missoula, Mineral, Ravalli, Lake, Sanders, Flathead, Lewis and Clark, and Beaverhead County.

Have Questions about your legal issue?
Call 406-926-6996
Or use the form below to schedule your free consulation today.

Name
Name
Phone
Phone
We will absolutely respect your privacy, and all information collected with this form will be kept confidential. However, please note that no attorney-client relationship is created by submitting your information.