Wrongful Discharge • Discrimination • Sexual harassment • Wage issues • Contracts Family, Health, and Leave issues • Competing with current and former employers

How do I know if I should contact a lawyer?
I hear that South Carolina is a "right to work" state, does that mean that the employer can do anything it wants?
What should I do if my supervisor is harassing me or "setting me up"?
Is my case better if I can make it a "class action"?
Are covenants not to compete enforceable in South Carolina?
Should I document everything?

How do I know if I should contact a lawyer?

If you have a problem that you and your employer cannot resolve, it may be worthwhile to find out what your rights are. Many people do not decide whether to speak with an attorney until they have decided to sue. That is a mistake. Understanding your legal rights will help you understand what options are available, including options you may have never considered. Litigation is not always the best option. By exploring the underlying issues, we can often suggest other strategies for meeting your personal objectives.
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I hear that South Carolina is a "right to work" state, does that mean that the employer can do anything it wants?

No. There is a lot of bad information floating around about what federal law and South Carolina law provides. The "right to work" law relates to the rights of individuals to support, or not support unions. It also protects employees from threats because of their desire to join or not join a union. What most people are referring to as "right to work" is actually the legal doctrine of "employment at-will." Like most states, South Carolina has recognized the employment at-will doctrine, which allows the employer or the employee to terminate the employment relationship, at any time and for any reason.

There are, however, many exceptions to this rule. In fact, South Carolina recognizes more exceptions to this rule (i.e. better protections) than most other states. In addition, the South Carolina legislature has provided important protections to individuals in a number of areas. Contrary to popular opinion, South Carolina law provides significant protections where there is a violation of an employee's rights.

For more information on wrongful discharge , see our topic page discussing this subject.
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What should I do if my supervisor is harassing me or "setting me up"?

The common mistake people make is to react emotionally. It is an understandable mistake because this can be a very stressful time. The natural tendency is to fight back with a spirited (i.e. hostile) memo/e-mail and confront management. This usually creates far more problems later and can, in fact, destroy a perfectly good claim. If you think writing an angry or self-righteous memo will make you feel better, think again. If management is trying to "set you up" or get you to quit, they will see your actions as sure-fire signals that they are getting the best of you.

This is a good time to take a step back and perhaps seek counsel as to what steps would be advantageous or harmful to your situation. Our job as attorneys is to help bring an objective view to your situation so that you can better see the options available to you and understand how pursuing the different options will make it more or less likely that you will achieve your objectives.
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Is my case better if I can make it a "class action"?

No. True actions are very rare and are appropriate in very few circumstances. actions are usually helpful only when there is a very large group of individuals who have all been affected the same way. An example would be a plant closure that affected everyone the same way, or an unlawful policy that affects a large group the same way.

Most people have individual claims that involve facts unique to their situations. Class actions take much longer and cost significantly more to process. The courts will not permit a class action in such circumstances. There may be situations, however, where more than one person can be a plaintiff in a single case. Whether that is in your best interest is an issue that has to be resolved on a case-by-case basis.
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Are covenants not to compete enforceable in South Carolina?

Sometimes. Each situation is different and must be analyzed separately. Determining whether the covenant may be enforced is only part of the equation. There often are larger issues of strategy involved to protect the client's interest. If you have a potential covenant issue, you should seek counsel as soon as possible (before competing or accepting an offer of employment if possible).

For more information on covenants, see our topic page discussing this subject.

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Should I document everything?

Documenting issues as they occur can be very helpful if done for your own use. If you are documenting events for purpose of sharing with an attorney or for possible consultation with an attorney, mark each document "for consultation with counsel" and do not share it or show it to anyone other than a licensed attorney. Documenting is important because people often forget chronological facts (i.e. dates and relative times) when they are under stress. Six months or two years down the road, it is very difficult to remember specifics of what happened and when.

There is a big difference in documenting things for your own use (a good idea generally) and papering the employer with written complaints (a bad idea generally). Many employees hurt themselves badly when they engage in contentious letter-writing battles with the employer. While demanding memos, letters, and e-mails may provide some sense of "release" at the time, they often make the employee look like a bickering troublemaker after the fact. Some people believe that, the more they complain and the more complaints they have, the better their case. The opposite is usually true.

We often hear clients justify nasty messages to the employer with the rationale that "the squeaky wheel gets the grease." This is simply wrong. Employers, judges, and juries view hostile letters as displaying a lack of credibility. People understand instinctively that if you are "raising hell," you must not be very interested in resolving the problem and continuing the relationship. Resist the urge!

And please, never use Latin or legal terms in your communications. We had one potential client who could not resist accusing his employer, in writing, of engaging in "ipso facto's" and "tortious conspiracies." The only thing his letter likely achieved was a lot of laughter in the company's legal department. Not exactly what he intended, we're sure.

There are circumstances, however, in which a respectful and thorough memo or letter can be of great help. Not only are these more likely to resolve the problem, but they reflect much better on you as a person. They also show your commitment to the organization and a desire to continue employment. Whether such a letter is a good idea in any particular situation is something that should be decided in consultation with an attorney. Be very careful what you say, especially in e-mails. Think of this issue in terms of a Miranda warning: Everything you say will be used against you in a court of law. Lawyers are trained, for example, on how to focus on the things you did not say as much as they are on how to pick apart what you do say.

On this point, it is also important to understand that every document you create or conversation that you have regarding your situation is something that the employer will be entitled to see if you pursue litigation. Assume every conversation you have and every message you send will be read by the employer and protect yourself accordingly.

Finally, if you have been gathering documentation and are entitled to the documents, keep them at home. Too many people have been fired and immediately ushered off the company premises, only to have their documentation remain in their office. Do not, however, take documents to which you are not entitled. This is theft, regardless of whether it "proves your case." Again, if you steal a file and bring it to your lawyer, he or she is obligated to return it or produce it in litigation.
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Wrongful Discharge • Discrimination • Sexual harassment • Wage issues • Contracts Family, Health, and Leave issues • Competing with current and former employers

Use the dispute resolution resources within your company

Many people come in with legitimate complaints about unfair treatment by a particular supervisor. In a surprising number of cases, individuals come to an attorney before seeking to resolve the matter internally. If your company allows you to take concerns up the chain of command, give it a try.

Many companies sincerely want to resolve disputes. This is not always evident from the treatment by a particular individual. But when a company has in place a system to present issues for resolution, it should be given a chance to resolve the matter. It also reflects more favorably on you that you tried to exhaust all other possibilities before suing. In fact, in certain areas of discrimination law, such as sexual or racial harassment, an employee cannot sue successfully if he or she fails to use an effective complaint process.

This doesn't mean that you should not find out what your rights are before pursuing an internal resolution (grievance). To the contrary, it is often best to know what your rights are beforehand so you can better assess what tact to take when trying to resolve your problem.
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Tips and common mistakes in employment law disputes.

In many cases, these mistakes are simply a result of stress and human nature. They are understandable given the treatment the person has received. Identifying and dealing with them early can make the difference between a successful resolution and disappointment.

1. Have an objective

We almost always ask this question in a consultation: What would you like to come of this? Many times the person has been so embroiled in the dispute that they have not thought this through. There is an old saying: "If you don't know where you are going, you won't know how to get there." Formulate your objective and write it on a piece of paper. (We actually do this in consultations). Here are some examples:

• Employee A: "I want to keep my job and eventually move up in the company"
• Employee B: "I want to leave after I find another job because I cannot afford to be unemployed"
• Employee C: "I want to start my own business after I have enough time to save the money"
• Employee D: "I want to obtain compensation for being wrongfully terminated because I cannot get another job that will pay the same."

2. Understand the impact of your actions on achieving your objective

If you are considering taking some action, ask yourself this: "Is what I am about to do going to make it more likely or less likely that I will achieve the objective I just stated?"

Take the example of Employee A above. Is confronting a top manager in an accusatory way more likely or less likely to lead to continued employment and promotional opportunities in the future? The scenarios for Employee B and Employee C both suggest a strong need to continue the employment relationship for the time being. Any action that escalates a dispute or increases the desire of the employer to terminate the relationship is self-defeating. Yet, in the heat of the moment, human nature leads us to do lots of self-destructive things, especially when our pride is involved.

Employee D may have a variety of options available for obtaining compensation, including negotiating a severance package or filing suit. Since filing suit is typically the option of last resort, she should plan carefully if she intends on convincing the employer to pay money voluntarily.

3. Lying

This can be tough when you are looking for a job. But defense lawyers are trained on how to compare applications over time and scour your records to find misstatements. If you sue, the employer will likely subpoena all past and subsequent employers (including employers to which you applied) to obtain your records. Remember, the goal of the attorney for the company is to hurt your credibility if you sue his or her client. Giving them the ammo to do so is just plain dumb.

4. Do not play the "Avenging Angel"

If you have a sincere and legitimate concern about your treatment, by all means express it. But "speak for yourself." Do not act as though you were put on earth to solve all of the ills in the world.

5. Do not drag others into your problems

People really resent being dragged into employment disputes. While a coworker may offer a sympathetic ear or word of encouragement, there are limits. Do not ask a coworker to provide information or documents unless he or she fully understands that their involvement will come to light. Never ask someone to provide confidential documents or documents that are company property (i.e. payroll records, another employee's personnel file). If you sue, the company's attorneys are fully entitled to question you under oath about conversations you have had with others about your claims. They will certainly not rest until they have learned the source of the documents your lawyer was required to produce that they will claim are confidential company property.

6. Do not waste too much time and energy on the battle

An employer can fire you at any time. There may be legal recourse down the road. But if you "see the handwriting on the wall" take advantage of what time is available to plan for the "what ifs." This includes financial planning, career planning, and preparing your spouse/significant other for what might happen. Most people tend to put all of their focus and energy on the dispute before them. This limits both your options and your leverage. Use some of your time and energy to explore other employment (including self employment) options. It is much easier to find employment while employed. Even if you do not want to leave your employment, consider carefully the possibility that it might end anyway.