Tuesday, July 26, 2011

Too Small to Sue

If you Google Too Big to Sue, you will get a bunch of stories about Wal-Mart v. Dukes (or maybe Google is just tailoring the search results to the employment law nerd in me, you'll have to try it and let me know). Of course, that's not even close to reality. You can still sue Wal-Mart. You can still sue Wal-Mart for employment discrimination. You can even sue Wal-Mart for employment discrimination as part of a class action - you just need glue.

But, in employment law there are many statutes under which employers can be too small to sue. Many of the statutes only apply to employers with a certain number of employees. A quick rundown of some of the important ones:
  • Title VII (Sex, Race, Religion, Color, National Origin) - 15 or more employees
  • ADEA (Age) - 20 or more employees
  • ADA (Disability) - 15 or more employees
  • GINA (Genetic Information) - 15 or more employees
  • FMLA (Family & Medical Leave Act) - 50 or more employees
Of course, nothing is that simple in the world of employment law. The calculations themselves can become difficult. For example, the Department of Labor website provides the following with regard to FMLA coverage:
Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.
And then there are the alternate routes to the same destination. For example, a Pennsylvania employer with 10 employees is not covered by Title VII... but is still prohibited from discriminating on the basis of race by the Pennsylvania Human Relations Act (generally covering employers with four or more employees). Other states have a wrongful termination (aka public policy exception to at-will employment) tort that allows employees to sue their employers for certain types of discrimination regardless of size.

The bottom line is that many employment law statutes carve out exceptions for employers that are "too small to sue." But, the calculation may be harder than you think.

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