Unfair vs. Illegal: Knowing When You Have a Case

Helping employees find justice in eleven states with offices in Illinois, Georgia, and Alabama.

How to Know When You Have A Case: Unfair vs. Illegal

How to Know When You Have A Case: Unfair vs. Illegal

Employment law cases are particularly complex due to the subtleties involved.

There is often a fine line between something that is unfair and something that violates federal or state laws. Employment attorneys spend early consultations with clients determining if a particular situation is illegal or just unfair. Here are some of the most common situations we hear about:


Many Equal Employment Opportunity Commission (EEOC) cases hinge on discrimination. Federal laws, and sometimes state laws, make it illegal to discriminate against employees on the basis of protected characteristics, including race, religion, gender, age, disability, pregnancy and national origin.

  • Illegal: An employee is passed over for promotion after a performance review notes that she’s too pushy. A man with less experience gets the job. Gender is a protected class, meaning she could take action against her employer for the missed opportunity if there was evidence that the failure to hire was motivated by gender and not pushy personality or the lack thereof. She’d want to discuss her options with an employment attorney.
  • Unfair: An employee is fired because his company wants to replace him with a lower-cost hire. If the employee is working at will, the employer may fire him for any reason—even if it’s to replace him with someone with less experience. But if he’s over 40 and his manager shares that the company is hoping to bring in younger employees, he may have an age discrimination case.

FMLA Violations

Employers often get into hot water when it comes to the Family & Medical Leave Act. Employees are entitled to up to 12 weeks of unpaid leave per year to deal with an extended illness, handle a family emergency or adjust to new parenthood.

  • Illegal: An employee requests FMLA for a medical issue. When she’s still out two weeks later, her employer insists on reviewing her medical records. While an employer may ask for a doctor’s note—or similar certification from a healthcare provider—medical records are private. If the employer threatens to fire or demote the employee unless she hands over her medical records, that’s illegal.
  • Unfair: An employee takes FMLA to help his husband through chemotherapy. Upon his return, he has a new position in an area with less opportunity. FMLA protects the employee’s job, but not his position. So long as the move isn’t a demotion coupled with a pay decrease, the employer is free to place the employee in another role, even if it’s less desirable.


Employers sometimes require extra effort from employees during peak seasons or busy periods. But for many employees, overtime is compensated differently than standard pay. When employers fail to pay workers or misclassify them, employees may be entitled to back pay under the Fair Labor Standards Act.

  • Illegal: An hourly, nonexempt employee is regularly asked to put in more than 40 hours a week, but she’s only paid her normal rate. Any hours worked over 40 should be paid time and a half. The employee would want to speak to an employment attorney to understand her options for recovering lost wages.
  • Unfair: A new manager of a 10-person team is asked to work extra to attend a team-building retreat. There’s no extra compensation for the extra half-day’s commitment. Salaried employees in true managerial positions are almost always exempt from overtime. However, if the employee is misclassified as a manager or is paid by the hour instead of salaried, he may still be eligible for overtime pay.


When an employee reports an issue, like sexual harassment or a problem related to a protected issue, the employer has an obligation to act. But some employers choose to instead punish those who speak up, moving them to a different position, taking away privileges or even firing them.

  • Illegal: A woman tells HR that her supervisor has been sending her sexually inappropriate emails and messages. The next week, she’s unexpectedly fired. Companies do not have the right to condone inappropriate or illegal actions by silencing employees. The employee would want to speak to an attorney to determine if she had a retaliation case.
  • Unfair: After reporting a protected  issue with a coworker, the employee’s manager acts distant and avoids casual conversations. Unless the manager escalates  the situation by sidelining, demoting or firing the employee, he may not yet  have the grounds for a retaliation case.

Hostile Work Environment

Title VII of the Civil Rights Act of 1964 protects workers from bullying, threats and offensive jokes. But illegal harassment still happens, leading to health issues, high turnover and the loss of productivity.

  • Illegal: After announcing she’s pregnant to her coworkers, a woman faces persistent rude jokes about her body, invasive questions and sexually inappropriate comments. The woman’s coworkers have created a hostile work environment through persistent sexual harassment and harassment based on a protected characteristic (her pregnancy).
  • Unfair: A supervisor micromanagers her employee and constantly criticizes his work. While the employee and his manager may not have a productive working dynamic, unless her conduct crosses legal lines, he does not yet have a case.

Atlanta Employment Attorneys 

At Barrett & Farahany, we are happy to discuss your unique situation and determine if it’s unfair or illegal. If you need help, please contact us to speak to one of our attorneys.

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Barrett & Farahany

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Atlanta, GA 30326

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Birmingham, AL 35203

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