USA Law and Practice Contributed by: Chuck Baldwin, Ken Siepman, Bonnie Martin and Justin Allen, Ogletree Deakins
or an applicable state law equivalent. Some of these analogous state laws are more expansive in terms of coverage and employee rights. Similarly, except where provided for by an employment contract, severance pay is not required. Employees are generally not entitled to compensation on dismiss - al beyond pay up until their final day of employment and any other business expenses owed to them at the time of dismissal. Depending on the law of the state in which the employee works, an employee may be enti - tled to receive temporary and partial wage replace - ment (known as “unemployment compensation”), which is generated by the state government from a special tax paid by employers. 7.3 Dismissal for (Serious) Cause Given that employment is generally presumed to be “at will”, an employer may dismiss an employee for any reason, with or without cause or notice. The only exceptions are where: • any applicable employment contract or collective bargaining agreement provides otherwise; or • the employee is dismissed for a reason proscribed by federal, state or local law (eg, an employee’s age, disability, race, sex or national origin). In a collective bargaining relationship, there are rec - ognised principles of just cause. The employee must have notice of the rule that is the subject of the dis - missal, the rule must be reasonable, the employer must have conducted a fair investigation and ascer - tained evidence of the violation, and the penalty must fit the “crime”. The determination of just cause must include an assessment of the prior points, in addition to the employee’s seniority and work record. 7.4 Termination Agreements Termination agreements are permissible. In gen - eral, there are no specific procedures or formalities required for termination agreements. The Older Worker Benefit Protection Act (OWBPA) provides procedural safeguards where an employer seeks a paid release of federal age discrimination claims. Additionally, special rules exist for the release of claims based on violations of the FLSA, which
requires minimum wage and overtime pay for most employees. Several federal agencies, such as the SEC and the NLRB, have also brought enforcement actions against employers whose release agreements impede a person from exercising their right to provide truth - ful information to governmental or regulatory bodies. 7.5 Protected Categories of Employee There is no specific protection against dismissal for particular categories of employees, except where pro - vided by the anti-discrimination laws, the NLRA, or other federal or state statutes. Employment is generally assumed to be “at will”, meaning either the employee or the employer can end the employment relationship at any time for any or no reason; this is determined by state law. However, there are four common exceptions, which are discussed in 7.1 Grounds for Termination . Therefore, employees may have grounds for a wrongful dismissal claim in situations where employment is terminated as a result of whistle-blowing, filing a worker’s compensation claim or refusing to engage in unlawful conduct. The remedies available depend on the law under which those claims are asserted. However, they generally include some combination of back pay, lost benefits, front pay, liquidated damages, compensatory dam - ages (including emotional distress damages), punitive damages, and attorney’s fees and costs – in addition to equitable relief such as reinstatement. 8.2 Anti-Discrimination Discrimination 8. Disputes 8.1 Wrongful Dismissal Employment discrimination is prohibited by a variety of federal, state and local laws. Federal law prohibits employment discrimination based on the protected characteristics of race, colour, national origin, sex (which includes sexual orientation and gender identi - ty), pregnancy, religion, age, disability, citizenship sta - tus, genetic information and military affiliation. Federal law also prohibits retaliation against employees who oppose unlawful discrimination (or who participate in proceedings challenging unlawful discrimination) or
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