Life, Liberty and the pursuit of happiness. This commendable, yet lofty ideal is the backbone of our society, hundreds of years after The Declaration of Independence was signed on July 4, 1776. Money is the medium we use to transfer value and convey worth. As a major prerequisite to basic human necessities such as food and shelter, money is the vehicle to enjoy these unalienable rights. Taking away one’s ability to earn pay, whether in stolen wages, or wrongful termination, is akin to trampling on our forefathers vision of what America should and shouldn’t be. While employers certainly have a wide range of privileges as the boss, they are not blindly given carte blanche. Those employers who wield their power abusively over employees, as the sword of Damocles, are often held accountable, but there are core aggrievances which should never be accepted.
Lost Wages: Hand Caught in the Cookie Jar:
The most common form of lost wages is stolen tips from waiters, because managers or owners may assume (wrongfully) they are allowed to share tip money. Tip money taken can cause workers to stay below federal minimum wage laws, in which case employers need to legally makeup the difference. Even major restaurants and TV personalities such as Wahlburgers are not immune to employee backlash, claiming thousands of dollars in lost wages. Another case, represented by attorney Drew Herrmann, was against Watauga, Texas based diner, Chef Point Cafe, on Diners, Drive-ins and Dives. Minimum wage workers were forced to spend up to $44 for improperly cooked food, out of their own paycheck. Employment lawyers such as Drew Herrmann are necessary to provide a buffer between the all powerful employer, with expendable funds, juxtaposed the worker, who often lives paycheck to paycheck. After years of successfully litigating large employers and winning, he is affectionately known by the people as the Pay Check Collector, based in Fort Worth Texas.
(Drew N. Herrmann, attorney, paycheckcollector.com)
Money often silences the poor working class. Mr. Herrmann saw an opportunity for a true win, win, allowing a contingency pay plan, where workers would only pay his fee if and when money was successfully litigated from the former employer. These payment arrangements offer consultation and legal representation which align with the client, out of selfish, moral and fiduciary reasons. While Mr. Herrmann’s practice is successful and growing, it’s rooted in a family farm working class mentality, where Drew started work at the tender age of 4. At 12, his father tragically passed away in a plane crash, forcing Drew and his family to come together in a time of need. While Drew is now a successful man, he understands the importance of giving a voice to those in their most vulnerable time of need. Lost wages is financially troubling, but also mentally; being a victim has a lasting effect on the human psyche.
Work Safety and Health:
Under each state and territory’s work health and safety legislation, there are obligations to ensure (so far as is reasonably practicable) the health and safety of workers and others in the workplace, such as visitors and customers. ‘Health’ is defined in the Work Health and Safety Act 2011 as both physical and psychological health.
The employer, or person in control of the business, should ensure health and safety so far as is reasonably practicable by:
- providing and maintaining a work environment without risk to health and safety
- providing and maintaining safe systems of work
- monitoring the health of workers and the conditions at the workplace
- consulting with workers and their representatives on work health and safety matters
- providing information, training, instruction and supervision so workers can safely perform their work activities.
At the same time, there are obligations under work health and safety legislation for workers and all other people within a workplace. Under the Disability Discrimination Act 1992 (Cth), an employee’s ability to work safely is an ‘inherent’ or essential requirement of any job. If an employee’s mental health condition could reasonably be seen to cause a health and safety risk for other people at work, then failing to disclose that risk could be a breach of their obligations under work health and safety legislation.
The Fifth and Fourteenth Amendments of the United States Constitution limit the power of the federal and state governments to discriminate. The Fifth amendment has an explicit requirement that the federal government not deprive individuals of “life, liberty, or property,” without due process of the law. See U.S. Const. amend. V. It also contains an implicit guarantee that each person receive equal protection of the laws. The Fourteenth Amendment explicitly prohibits states from violating an individual’s rights to due process and equal protection. See U.S. Const. amend. XIV. In the employment context, the right of equal protection limits the power of the state and federal governments to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group (such as a race or sex). Due process protection requires that employees receive a fair process before the termination if the termination relates to a “liberty” (such as the right to free speech) or property interest. State constitutions may also afford protection from employment discrimination.
The Constitution does not directly constrain discrimination in the private sector, but the private sector has become subject to a growing body of federal and state statutes.
The former three are the most common employee abuses, yet others such as unpaid overtime wages, salary exempt status, disabilities and wrongful termination, are unfortunately ever present. When choosing a local attorney ensure they are empathetic to your cause, proven track record of success, contingency based pay, and testimonials. Battling a former employer isn’t the path of least resistance, but sometimes you have to take a stand against Goliath.