# Usage: curl -sSL https://seed.show/employment.law.us | bash -s <install-path>
# <install-path> is the directory where the file should land.

set -euo pipefail
[ -z "${1:-}" ] && {
  echo "install requires a path: curl -sSL https://seed.show/employment.law.us | bash -s <install-path>" >&2
  exit 1
}
TARGET="$1"
mkdir -p "$TARGET"
DEST="$TARGET/seed-fold.ELof29.folded.md"

cat > "$DEST" <<'PORTDOWN_8C68357'
<!--
This is a `.folded.md` archive — a directory packed into one markdown
file. The markers below are load-bearing; don't edit them directly.

To unpack (requires bash — if you have no shell, tell the user):
  1. curl -sSLf https://fold.dom.vin/skill | bash -s <INSTALL_DIR>
  2. <INSTALL_DIR>/fold/scripts/unfold <this-file>
     (or: unfold <this-file>  if fold/scripts is on your PATH)
-->

---
fold: true
marker: 8d24a1
at: 2026-05-07T16:16:02Z
root: seed-pack.dYtdZS
---

<!--fold:8d24a1@file path="README.md" mode="644"-->
# employment.law.us

US employment law context for agents. Orientation only — not legal advice to the individual. Before every analysis: identify the state.

---

## What this is for

This seed frames employment law questions accurately. Use it to:
- Identify which legal regime applies before analyzing any claim
- Recognize the failure modes that cause agents to give wrong answers
- Surface the structural facts that hold across US jurisdictions

**Do not:** Advise individuals on their specific legal situation without the involvement of a licensed attorney. Federal and state law vary significantly; the correct answer for an employee in California may be completely wrong for an employee in Texas. This context is orientation, not legal opinion.

---

## Mental model: federal floor, state ceiling

US employment law is not a single system. Federal law sets a minimum floor of worker protections — FLSA, Title VII, FMLA, ADA, ADEA, NLRA — and states may layer substantially stronger requirements on top. States cannot go below federal minimums, but there is no ceiling on how much further they can go.

**The first step in any employment analysis is identifying the state.**

Federal rules may be irrelevant if state law governs. California, New York, Washington, Massachusetts, and Illinois diverge most sharply from federal defaults. Never begin with "under the FLSA..." without first confirming that federal law, and not a more protective state analog, controls the question.

The statutes that form the federal floor:

- **FLSA** (Fair Labor Standards Act) — minimum wage, overtime, child labor, and the exempt/non-exempt classification framework. Check DOL sources for current salary thresholds — they are subject to regulatory revision and litigation.
- **Title VII** (Civil Rights Act of 1964, as amended) — prohibits employment discrimination based on protected class characteristics; enforced by the EEOC. Applies to employers with 15 or more employees.
- **FMLA** (Family and Medical Leave Act) — 12 weeks of job-protected unpaid leave for qualifying events; both employer and employee eligibility thresholds apply. Check sources for current requirements — and always check state equivalents.
- **ADA** (Americans with Disabilities Act) — prohibits discrimination against qualified individuals with disabilities; requires reasonable accommodation through an interactive process.
- **ADEA** (Age Discrimination in Employment Act) — protects workers 40 and older from age-based discrimination.
- **NLRA** (National Labor Relations Act) — protects concerted activity (union and non-union); enforced by the NLRB.

> Current thresholds (salary levels, FTE counts, benefit limits) change through regulation and litigation. Always fetch from sources.md before advising on a specific number.

---

## What agents get wrong

### 1. Exempt/non-exempt: salary alone is not enough

To be properly classified as exempt from overtime, an employee must satisfy two independent tests: the **salary-level test** AND the **duties test**. The salary threshold is set by DOL regulation and has been subject to litigation — verify the current figure at the DOL source before advising.

But the salary-level test is the easier hurdle. The duties test requires that the employee's primary duty falls within a recognized exemption category: executive, administrative, professional, computer, or outside sales. Each category has a specific meaning in the regulations.

**The failure mode:** Agent checks the salary level, confirms it clears the threshold, concludes the employee is exempt. A salaried employee whose primary duty is routine clerical work is not exempt regardless of pay. Always analyze both tests independently.

### 2. At-will employment: the default has exceptions that frequently apply

At-will employment is the default in 49 states (Montana is the exception), meaning either party can terminate the relationship at any time for any reason — or no reason. Agents often stop there and advise that any termination is permissible.

**The failure mode:** At-will employment has four exception categories recognized to varying degrees across states:

- **Implied contract**: employee handbooks, offer letters, or oral assurances can create an implied contract limiting termination to "cause" even without a written agreement
- **Covenant of good faith and fair dealing**: recognized in a minority of states; prohibits terminations made in bad faith to deprive employees of earned benefits (e.g., firing a salesperson to avoid paying a vested commission)
- **Public policy**: employees cannot be terminated for exercising a legal right (filing workers' comp), refusing an illegal act, or performing a legal duty (jury service); recognized in virtually every state
- **Statutory exceptions**: WARN Act notice requirements for mass layoffs, antiretaliation provisions in every major employment statute, and protected-class status all overlay the at-will default

At-will means the employer does not need a reason — it does not mean the employer is immune from claims.

### 3. Federal vs. California discrimination law: the rules diverge materially

Federal Title VII applies to employers with 15 or more employees and has a 180-day statute of limitations to file with the EEOC (300 days in states with an EEOC-certified state agency). California's Fair Employment and Housing Act (FEHA), now enforced by the Civil Rights Department (CRD), applies to employers with 5 or more employees and has a 3-year statute of limitations to file a complaint. California's protected categories also extend beyond Title VII: FEHA expressly covers marital status, sexual orientation, gender identity and expression, and medical condition, among others.

**The failure mode:** Agent analyzing a California discrimination question applies Title VII coverage thresholds, timelines, or protected class lists — and gives a wrong answer. When the state is California, always analyze under FEHA first.

### 4. Independent contractor misclassification: the test varies by state and by federal agency

Federal law uses the **economic realities test**: courts examine the totality of circumstances to assess whether a worker is economically dependent on the employer or operates an independent business. The relevant factors vary by circuit and by the agency applying the test (DOL and IRS use different factor sets).

California uses the **ABC test** under AB5, which is far more restrictive: a worker is presumed an employee unless the hiring entity can demonstrate all three prongs — (A) the worker is free from control in performing the work, (B) the work is outside the usual course of the hiring entity's business, and (C) the worker is customarily engaged in an independently established trade or occupation. Prong B alone eliminates contractor classification for most workers whose services are core to the business.

**The failure mode:** Agent applies the federal economic realities test to a California situation — and dramatically understates misclassification exposure. Always identify the state, then select the correct test.

Other states have their own tests — see failure-modes.md for a full treatment.

### 5. FMLA eligibility: the statute does not reach most small employers or new employees

FMLA provides 12 weeks of unpaid, job-protected leave per year for qualifying events. But it imposes two-sided eligibility conditions that agents routinely ignore.

**Employer eligibility:** The employer must have 50 or more employees within 75 miles of the worksite. Employees of small employers have no FMLA rights regardless of tenure.

**Employee eligibility:** The employee must have worked for the employer for at least 12 months AND have logged at least 1,250 hours in the preceding 12-month period. A full-time employee with 11 months of tenure is not yet eligible.

**The failure mode:** Agent applies FMLA to small employers and new hires without checking eligibility thresholds. State equivalents — California's CFRA, New York's PFL, Washington PFML — often have lower thresholds and should be checked when FMLA does not apply.

---

## Stable structural facts

### Protected classes under Title VII and amendments

- Race and color (Title VII, 1964)
- Religion (Title VII, 1964)
- Sex, including pregnancy (Title VII as amended by PDA, 1978; extended to sexual orientation and gender identity by *Bostock v. Clayton County*, 2020)
- National origin (Title VII, 1964)
- Age 40 and older (ADEA, 1967)
- Disability (ADA, 1990) — applies to qualified individuals; requires reasonable accommodation through the interactive process
- Genetic information (GINA, 2008)

States typically add protected classes. California adds marital status, sexual orientation (pre-Bostock), gender identity and expression, medical condition, and others.

### The interactive process obligation under ADA

When an employee requests a disability accommodation, or when a disability need becomes apparent, the ADA requires the employer to engage in an **interactive process** — a good-faith, individualized dialogue to explore possible accommodations that would allow the employee to perform the essential functions of the job. The employer is not obligated to provide the employee's preferred accommodation, but must consider reasonable alternatives before concluding that no accommodation exists. Failure to engage in the interactive process is itself a violation, separate from any failure to accommodate. Document every step.

### NLRA protected concerted activity

Section 7 of the NLRA protects employees' rights to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." This applies to **non-union workplaces**. Employees discussing wages, working conditions, or management practices with coworkers are engaged in protected concerted activity. Employer policies that prohibit employees from discussing pay, that retaliate for complaints raised with coworkers, or that restrict social media access to prevent workplace discussion can violate the NLRA regardless of whether a union is involved.

### Disparate treatment vs. disparate impact

Two distinct theories of discrimination liability — understanding them is prerequisite to analyzing any discrimination claim.

**Disparate treatment** — intentional discrimination. Treating an individual differently because of a protected characteristic. Intent is an element; direct or circumstantial evidence of discriminatory motive is required. The *McDonnell Douglas* burden-shifting framework applies in most cases: prima facie case → employer articulates legitimate nondiscriminatory reason → plaintiff shows pretext.

**Disparate impact** — facially neutral policy with a disproportionate exclusionary effect on a protected group. No intent required. Statistical evidence of impact suffices to shift the burden; the employer must then show the practice is job-related and consistent with business necessity. The EEOC's four-fifths rule (80%) is a common benchmark: if the selection rate for a protected group is less than 80% of the highest-selecting group, adverse impact is indicated.

---

## What AI is changing

### AI in HR: where it's being deployed

AI tools are now operating across the employment lifecycle:

- **Resume screening and ranking:** Automated scoring of applicants against job requirements, increasingly using LLM-based matching
- **Scheduling and workforce management:** Algorithmic shift scheduling, predictive staffing, automated time-and-attendance systems
- **Performance monitoring:** Keystroke logging, screen capture, activity monitoring for remote workers; algorithmic performance scores derived from output metrics
- **Interviews:** Automated video interview analysis (facial expression, speech patterns, word choice)
- **Compensation:** Algorithmic pay-banding and salary recommendations

### EEOC and disparate impact exposure

The EEOC has been explicit that using AI tools does not transfer legal liability to the vendor. If an employer uses an AI hiring tool that produces adverse impact against a protected class, the employer is liable — the vendor relationship is not a defense.

The key risk: AI models trained on historical data reproduce historical patterns. If the prior workforce was demographically skewed, a model trained on "successful hires" will encode that skew. The output looks neutral; the liability is real.

The EEOC's 2023 technical assistance document on AI and Title VII, and the 2024 proposed rule on algorithmic employment decision-making, are the current enforcement signals. Check sources.md for current documents.

**The employer's exposure points:**
- Using a validated AI tool validated on a different population than your workforce
- Failing to audit selection outcomes by protected class
- Relying on an AI recommendation without the ability to explain the basis in terms of job-related criteria
- Algorithmic performance scoring systems that produce disparate outcomes for protected groups

### What stays human

The legal and practical judgment calls that AI cannot safely own:

- **The interactive process under ADA** — individualized dialogue, case-by-case, must respond to what the employee actually says
- **Protected class status determinations** — FMLA eligibility, ADA qualified individual analysis
- **Termination decisions with legal risk attached** — firing anyone who has recently exercised a statutory right (FMLA leave, workers' comp, discrimination complaint) requires legal review, not an algorithmic recommendation
- **WARN Act triggering event analysis** — mass layoff definitions, plant closing definitions, the 75-mile radius calculation
- **Reasonable accommodation analysis** — undue hardship is a fact-specific analysis; AI can surface options, not determine what is unreasonable

The safe framing: AI can surface information, rank candidates against documented criteria, and flag potential issues. It cannot make the judgment calls that create legal exposure for the employer — and an employer that treats an AI recommendation as a final decision has created exactly the exposure the interactive process and reasoned judgment are designed to avoid.
<!--fold:8d24a1@file path="failure-modes.md" mode="644"-->
# Employment Law Failure Modes

The specific scenarios where agents give wrong answers on employment law questions — with the mechanism of the error and what correct analysis looks like. Read after README.md.

---

## 1. Worker misclassification (W-2 vs. 1099)

### Why it matters

Misclassifying an employee as an independent contractor is one of the most consequential employment law errors. The employer who gets it wrong owes back payroll taxes, overtime pay for uncompensated hours, benefits they should have provided, and potential statutory penalties. The IRS, DOL, and state agencies all run enforcement programs independently.

### The failure mode

Agents apply a single test to a classification question without identifying the jurisdiction or the agency asking the question. There is no single universal test for contractor status. The relevant test depends on:

- **Which law is at issue**: FLSA classification (DOL economic realities test), federal tax classification (IRS common law control test / Section 530 safe harbor), state wage law classification (varies by state), state unemployment insurance (varies by state)
- **Which state applies**: California uses the ABC test under AB5, the most restrictive in the country. Massachusetts uses the ABC test as well. Most other states use some version of the economic realities test, but the factor lists differ.

**The DOL economic realities test** (federal, FLSA) examines six factors to assess whether the worker is economically dependent on the employer: (1) opportunity for profit or loss, (2) investment in tools or facilities, (3) permanency of the relationship, (4) degree of skill required, (5) degree of control by the employer, (6) whether the work is integral to the employer's business. No single factor is determinative. The 2024 DOL rule restored the totality-of-circumstances analysis after an earlier attempt to elevate control as the dominant factor.

**The IRS common law test** uses 20 factors grouped into three categories — behavioral control, financial control, and type of relationship. The IRS test and the DOL test often reach the same conclusion but not always. An IRS 1099 relationship is not proof of FLSA contractor status.

**California's ABC test** (AB5): A worker is presumed an employee. The hiring entity must prove all three prongs to establish contractor status: (A) the worker is free from the control and direction of the hiring entity in connection with the performance of the work; (B) the worker performs work that is outside the usual course of the hiring entity's business; (C) the worker is customarily engaged in an independently established trade, occupation, or business. Prong B is the hardest. If the worker's services are part of the hiring entity's core business — an app developer contracted to build features for a software company, a writer contracted to produce content for a media company — prong B fails and the worker is an employee regardless of how the contract reads.

**Common misclassification indicators**: single-client arrangements with no other customers; employer-set hours and methods; employer-provided tools and equipment; indefinite duration; non-negotiable rates. Multiple indicators pointing the same direction increase both the probability of misclassification and the severity of exposure.

### Correct analysis checklist

1. Identify the state where the work is performed
2. Identify which legal regime is at issue (federal tax, FLSA, state wage law, state UI, benefits)
3. Apply the test for that regime in that state
4. Do not treat a 1099 form, a contractor agreement, or a job title as evidence of contractor status — the legal test looks at the substance of the relationship, not its label

---

## 2. Protected class errors in discrimination analysis

### Why it matters

Identifying the wrong protected class, applying the wrong statute, or missing a class entirely changes both the substantive analysis and the procedural path — filing timelines, coverage thresholds, available remedies.

### The failure mode

**Failure mode A: Applying federal categories to state questions.** Federal protected classes under Title VII are not the floor everywhere — many states expressly protect categories that Title VII does not. Agents apply the federal list to a state claim and tell the person they have no claim. This is wrong when the relevant state law covers additional categories.

Examples of state-only or recently-extended protections:
- **Sexual orientation and gender identity**: Covered by Title VII since *Bostock* (2020), but California, New York, and many other states had broader coverage years earlier. Pre-Bostock analysis of state law should not be assumed to match post-Bostock federal analysis.
- **Marital status**: Covered by California FEHA, New York Human Rights Law, and others. Not covered by Title VII.
- **Weight and height**: Michigan's Elliott-Larsen Civil Rights Act historically covered weight and height as protected categories. Some cities and localities have added body size protections.
- **Criminal history**: Several states and many cities have enacted ban-the-box laws restricting criminal history inquiries during hiring. These are separate from anti-discrimination law but intersect with protected class analysis (criminal history restrictions can produce disparate impact on protected groups).
- **Medical condition and genetic characteristics**: FEHA (California) covers medical condition separately from disability.

**Failure mode B: Missing the employer size threshold.** Every federal anti-discrimination statute has a minimum employee count, and they differ:

| Statute | Minimum employee count |
|---|---|
| Title VII | 15 employees |
| ADA | 15 employees |
| ADEA | 20 employees |
| GINA | 15 employees |
| FMLA | 50 employees within 75 miles |
| EPA (Equal Pay Act) | All employers (no minimum) |
| NLRA | All employers (no minimum, with limited exceptions) |

California FEHA: 5 employees. Many state laws cover all employers.

Agents apply Title VII to a five-person startup. The startup has no Title VII obligations. It may have FEHA obligations (California), NYSHRL obligations (New York), or obligations under other state law.

**Failure mode C: Confusing harassment liability standards.** Title VII prohibits harassment that is severe or pervasive enough to alter the conditions of employment — the *Meritor Savings Bank v. Vinson* standard. A single offensive remark generally does not meet the threshold. But some state laws have lower standards; New York State adopted a lower "petty slights and trivial inconveniences" standard as a floor (not a ceiling) in 2019. Agents apply the federal severe-or-pervasive test to a state claim and tell a claimant they have no cause of action when they may have one under state law.

### Correct analysis checklist

1. Identify the state first
2. Apply state law protected class list, not just the federal list
3. Check the employer size threshold for the relevant statute — federal thresholds and state thresholds differ
4. For harassment claims, check whether the state has a lower threshold than federal law

---

## 3. FMLA eligibility errors

### Why it matters

Applying FMLA to an ineligible employer or employee tells someone they have rights they don't have. Failing to check state equivalents when FMLA doesn't apply leaves a worker without leave they are actually entitled to.

### The failure mode

**Failure mode A: Applying FMLA to a small employer.** The employer must have 50 or more employees within 75 miles of the employee's worksite. Not 50 employees nationally — 50 within 75 miles of the specific worksite. A company with 200 employees nationally but only 30 at the employee's location may not be a covered employer.

**Failure mode B: Applying FMLA to a new employee.** The employee must have (a) worked for the employer for at least 12 months and (b) worked at least 1,250 hours in the preceding 12-month period. Both conditions must be met. A new hire with 9 months of tenure has no FMLA rights regardless of employer size.

**Failure mode C: Confusing qualifying events.** FMLA covers:
- Serious health condition of the employee
- Serious health condition of the employee's spouse, child, or parent (not siblings, not in-laws under federal law — though some states extend this)
- Birth, adoption, or foster placement of a child
- Qualifying military exigency arising from a covered military member's active duty

FMLA does not cover routine illness, minor medical procedures, or non-qualifying family members. An employee who misses work due to the illness of a sibling or grandchild has no FMLA protection under federal law (some states extend protection).

**Failure mode D: Ignoring state equivalents when FMLA doesn't apply.**

| State | Statute | Key difference from FMLA |
|---|---|---|
| California | CFRA | Covers employers with 5+ employees; covers domestic partners and grandparents/siblings/grandchildren/parents-in-law |
| California | SDI / PFL | Paid leave funded by employee payroll contribution; partial wage replacement |
| New York | PFL (Paid Family Leave) | Paid; covers 10 weeks as of 2023; funded by employee payroll deduction |
| Washington | PFML (Paid Family and Medical Leave) | Paid; covers employers of all sizes |
| Massachusetts | PFML | Paid; covers most private employers |
| New Jersey | FLA + TDI/FLI | Covers employers with 30+ employees; paid component |

When FMLA does not apply because the employer is too small or the employee is too new, check the relevant state law before concluding the worker has no leave rights.

### Correct analysis checklist

1. Check employer eligibility: 50+ employees within 75 miles of the worksite
2. Check employee eligibility: 12 months of service AND 1,250 hours in the preceding 12-month period
3. Confirm the qualifying event fits FMLA's enumerated list
4. If FMLA does not apply, check state law before concluding no leave rights exist

---

## 4. Non-compete enforceability errors

### Why it matters

Non-compete enforceability is one of the areas with the greatest state-to-state variation in employment law. A non-compete clause that is fully enforceable in Florida may be void in California. Advising that a clause is enforceable without checking the governing law — and then confirming the governing law is what the contract says it is — is a common and consequential error.

### The failure mode

**Failure mode A: Applying the governing-law clause without checking mandatory local law.** A non-compete agreement that reads "governed by the laws of Texas" does not automatically make the clause enforceable against a California employee. California Business and Professions Code § 16600 voids contracts that restrain anyone from engaging in a lawful profession, trade, or business — and California courts apply this to California employees regardless of a foreign governing-law clause. The same principle applies in Minnesota, North Dakota, and Oklahoma (all of which essentially void non-competes).

**Failure mode B: Ignoring the FTC non-compete rule (and its status).** The FTC finalized a rule in April 2024 that would have banned most non-compete agreements nationally. That rule was immediately challenged in federal court and was enjoined before its effective date — as of this writing, its enforceability is in litigation. Do not advise clients that a national ban is in effect without checking the current status. Use sources.md to get the current posture.

**The current state of non-compete enforceability by category:**

| State | Non-competes | Notes |
|---|---|---|
| California | Void (with narrow exceptions) | § 16600; applies to employees even with foreign governing law |
| Minnesota | Void (2023) | New statute effective January 1, 2023 |
| North Dakota | Void | Longstanding |
| Oklahoma | Void | Longstanding |
| Florida | Enforceable (with requirements) | Must protect a legitimate business interest; reasonableness of scope and duration required |
| Texas | Enforceable if ancillary to an otherwise enforceable agreement | Reasonableness required |
| New York | Enforceable but narrowly construed | Must be reasonable in scope, duration, geography; courts "blue pencil" (modify) rather than void |
| Illinois | Enforceable above $75,000 salary threshold | 2021 Freedom to Work Act restricts use below threshold |

**Failure mode C: Conflating non-competes, non-solicitation clauses, and NDA/confidentiality agreements.** These are three different instruments with different enforceability profiles:

- **Non-compete**: restricts the employee from working for competitors. Most restricted by state law.
- **Non-solicitation of customers**: restricts the employee from soliciting the company's customers after departure. More favorably treated than non-competes in most states.
- **Non-solicitation of employees**: restricts the employee from recruiting former colleagues. Also more favorably treated — though California voids these too.
- **Confidentiality/NDA**: protects trade secrets and proprietary information. Uniformly enforceable (with reasonable scope) because every state has a trade secret statute (most modeled on the Defend Trade Secrets Act or the Uniform Trade Secrets Act).

An agent that tells a client their non-compete is unenforceable may be right about the non-compete while the confidentiality and non-solicitation provisions remain fully enforceable — a nuance that matters if the client is planning to take customers or start a competing business.

### Correct analysis checklist

1. Identify where the employee works (not just where the employer is incorporated or where the contract says)
2. Check the law of the state where the employee works — mandatory local law overrides governing-law clauses in California, Minnesota, North Dakota, and Oklahoma
3. Check the FTC rule's current status before advising on any federal preemption argument
4. Distinguish between non-compete, non-solicitation, and confidentiality provisions — they have different enforceability profiles
5. Check whether the state requires consideration for post-employment restrictions (some states require independent consideration beyond continued employment)

---

## 5. Offer letter traps

### Why it matters

Offer letters are frequently drafted without legal review and frequently create unintended contractual obligations. The at-will default is the employer's primary protection — and offer letter language often waives it without the employer understanding what they've done.

### The failure mode

**Trap 1: Fixed-term language.** An offer letter that states "we are pleased to offer you a position for one year starting June 1" may create a fixed-term employment contract. If the employer terminates the employee before the year is up without cause, they may owe the employee the remainder of the contract's value. The at-will default is displaced by a clear term.

**Trap 2: "Cause" language without a definition.** An offer letter that says "your employment may be terminated only for cause" creates a just-cause termination obligation. Without a definition of "cause" in the letter, courts will supply one — typically requiring a legitimate, non-pretextual business reason. The employer has given up at-will status and now bears the burden of justifying terminations.

**Trap 3: Handbook incorporation without an integration clause.** Offer letters that reference the employee handbook or policies manual may incorporate the handbook's provisions into the employment agreement. If the handbook contains language limiting terminations to "cause," or contains progressive discipline procedures, a court may find these provisions contractually binding. The antidote: an integration clause in the offer letter stating that the letter (not the handbook) constitutes the entire agreement, and a disclaimer in the handbook stating that it does not create a contract.

**Trap 4: Offer letters that commit to equity without specifying terms.** "You will receive stock options" without specifying the grant size, strike price, vesting schedule, and cliff creates an enforceable promise with no specifics. Courts will sometimes award reasonable quantum-meruit damages. Equity should be described in a separate equity agreement or referenced as "subject to the terms of [Plan Name] and a separate grant agreement."

**Trap 5: Misrepresentation claims from offer-stage statements.** Statements made during the hiring process can create liability separate from the offer letter: if a recruiter promises "you'll be promoted in 18 months" and that doesn't happen, the employee may have a promissory estoppel or fraudulent misrepresentation claim depending on the state. Document what was and wasn't promised.

**Trap 6: Missing required disclosures.** Several states require specific disclosures in offer letters or at the time of hire:

- **California**: requires written notice of wage rates, pay schedule, CSRA rights, and overtime status at hire (Labor Code § 2810.5)
- **New York**: requires Wage Theft Prevention Act notice at hire in English and the employee's primary language
- **Some states and cities**: require salary ranges in job postings and offer letters as part of pay transparency laws (Colorado, New York City, California, Washington)

Failure to provide required notices creates separate liability from any underlying employment claim.

### Correct analysis checklist

1. Look for fixed-term language — if present, the at-will default may be displaced
2. Look for "cause" limitations — if present, and not defined, the employer has created an undefined just-cause standard
3. Check for handbook incorporation — is the handbook referenced? Does the handbook have a disclaimer?
4. Equity promises: are grant size, vesting schedule, and plan document referenced?
5. Check whether the state requires wage or pay transparency disclosures at hire

---

## 6. Retaliation claims: the most common claim category

### Why it matters

Retaliation is now the most frequently filed charge with the EEOC — more than any individual category of discrimination. It is also one of the easiest claims to prove relative to the underlying discrimination claim. An employer who handles a discrimination complaint correctly may still create devastating retaliation liability through subsequent management of the complaining employee.

### The failure mode

**The legal structure of retaliation claims:** To establish a prima facie retaliation claim, an employee must show: (1) they engaged in a protected activity; (2) the employer took an adverse action; (3) a causal connection exists between the protected activity and the adverse action.

**Protected activity is broader than employees or employers usually understand.** It includes:
- Filing an EEOC charge or state agency complaint
- Complaining internally to HR or management about what the employee reasonably believes is discrimination (even if the underlying belief is wrong)
- Participating in an investigation (witness, not just complainant)
- Refusing to comply with a discriminatory instruction
- Requesting a reasonable accommodation under the ADA

**The causal connection is often inferred from timing.** Courts and juries routinely infer causal connection from temporal proximity. An employee who files an EEOC charge and is terminated three weeks later has a viable retaliation claim — the employer needs a documented, legitimate, non-retaliatory reason with evidence predating the protected activity.

**The failure mode:** Agent advises that an employer can terminate an employee for performance reasons after the employee filed a complaint. This may be legally correct if the performance issue was documented before the complaint and would have led to termination regardless — the "same decision" or "but for" defense. It is legally wrong if:
- Performance documentation was created or escalated after the complaint
- The employee was treated differently from similarly situated employees who had not complained
- The adverse action was disproportionate to the performance issue relative to how other employees were treated

**The management error:** The riskiest period for retaliation claims is the 90 days after an employee makes a complaint. Any adverse action — schedule changes, exclusion from meetings, different project assignments, performance improvement plans — requires documentation showing it would have happened regardless of the complaint. If that documentation doesn't exist, the employer is handing the employee a retaliation claim.

### Correct analysis checklist

1. Identify all protected activity within the past 12-18 months before any adverse action
2. Check temporal proximity: adverse action within 90 days of protected activity triggers heightened scrutiny
3. Ask whether performance or conduct documentation predates the protected activity
4. Compare treatment of similarly situated employees who did not engage in protected activity
5. For terminations, confirm the decision-maker knew about the protected activity — if they didn't, causal connection fails
<!--fold:8d24a1@file path="sources.md" mode="644"-->
# sources

Fetch at task time. Ordered by importance. Do not rely on cached knowledge for thresholds — fetch the source.

---

## Core federal statutes and enforcement

**1. DOL FLSA overview — minimum wage, overtime, exemptions, child labor**
Plain-language compliance guide. Use this to orient before analyzing any wage-and-hour question.
https://www.dol.gov/agencies/whd/compliance-assistance/handy-reference-guide-fair-labor-standards-act

**2. DOL FLSA salary level — current exempt classification threshold**
The salary threshold for white-collar exemptions has been subject to regulatory revision and litigation. Verify here before advising on any classification question — do not use a memorized figure.
https://www.dol.gov/agencies/whd/overtime/2024-overtime-rule

**3. DOL independent contractor final rule — economic realities test factors**
The 2024 rule sets the DOL's factor-based test for worker classification under the FLSA. Use when analyzing federal contractor misclassification exposure.
https://www.dol.gov/agencies/whd/flsa/2024-independent-contractor-rule

**4. DOL FMLA advisor tool — eligibility and requirements**
Interactive tool that walks through employer eligibility, employee eligibility, qualifying reasons, and notice requirements. Use when the FMLA applies or when checking whether it applies.
https://webapps.dol.gov/elaws/whd/fmla/

**5. EEOC: filing a charge and protected class guidance**
How to file a charge, applicable timelines, and the list of federal protected classes enforced by the EEOC. Check here for current filing windows and procedures.
https://www.eeoc.gov/filing-charge-discrimination

**6. EEOC: prohibited employment practices**
Plain-language summary of what Title VII, ADA, ADEA, GINA, and PDA prohibit. The canonical reference for federal discrimination law.
https://www.eeoc.gov/prohibited-employment-policiespractices

**7. NLRB: protected concerted activity — Section 7 rights**
What the NLRA covers in union and non-union workplaces, and what employer policies violate it. Check here when analyzing handbook provisions, social media policies, or pay-discussion restrictions.
https://www.nlrb.gov/rights-we-protect/rights/employee-rights

---

## State law (California primary)

**8. California CRD (Civil Rights Department) — FEHA coverage and enforcement**
California's Fair Employment and Housing Act, enforcement procedures, protected categories, complaint process, and current timelines. Use when the state is California — FEHA governs, not Title VII, for most employment discrimination questions.
https://calcivilrights.ca.gov/employment/

**9. California AB5 and worker classification**
The ABC test and its exceptions. Use when analyzing independent contractor status in California.
https://www.dir.ca.gov/dlse/faq_independentcontractor.htm

---

## AI and employment law (emerging — check for updates)

**10. EEOC technical assistance: AI and Title VII**
The EEOC's 2023 guidance on how Title VII applies to AI-driven selection and screening tools. Includes the employer liability principle: using a vendor's AI tool does not transfer liability.
https://www.eeoc.gov/laws/guidance/questions-and-answers-clarify-and-provide-a-common-interpretation-uniform-guidelines

**11. DOL AI and worker monitoring guidance**
Emerging DOL guidance on algorithmic scheduling, performance monitoring, and worker rights under algorithmic management systems.
https://www.dol.gov/general/AI

---

## Specific claim types

**12. WARN Act — mass layoff and plant closing notice requirements**
60-day advance notice requirements for qualifying mass layoffs and plant closings. Thresholds, exceptions, and what triggers the obligation.
https://www.dol.gov/agencies/eta/layoffs/warn

**13. EEOC uniform guidelines on employee selection procedures**
The four-fifths rule and the legal standards for validating selection procedures (including AI tools) under disparate impact theory.
https://www.eeoc.gov/laws/regulations/index.cfm#uniform-guidelines

**14. DOL COBRA continuation coverage**
Health insurance continuation requirements after qualifying events. Thresholds and election periods are specified here.
https://www.dol.gov/general/topic/health-plans/cobra
<!--fold:8d24a1@end-->
PORTDOWN_8C68357

# ── post ──
MARKER=$(awk '/^---$/ { f++; if (f==2) exit; next } f==1 && /^marker:[[:space:]]/ { sub(/^marker:[[:space:]]+/, ""); print; exit }' "$DEST")
[ -z "$MARKER" ] && { echo "seed: archive has no marker — corrupt" >&2; exit 1; }
awk -v m="$MARKER" -v outdir="$TARGET" '
  BEGIN {
    # Match <!--fold:<m>@file path="X"--> with an optional mode attr after
    # the path (fold emits  mode="644"  on executables).
    file_re = "^<!--fold:" m "@file path=\"([^\"]+)\"( mode=\"[0-9]+\")?-->$"
    end_re  = "^<!--fold:" m "@end-->$"
  }
  $0 ~ end_re { if (current) close(current); exit }
  $0 ~ file_re {
    if (current) close(current)
    line = $0
    sub(/^<!--fold:[^@]+@file path="/, "", line); sub(/".*$/, "", line)
    current = outdir "/" line
    dir = current; sub(/\/[^\/]*$/, "", dir)
    if (dir != current) system("mkdir -p \"" dir "\"")
    printf "" > current
    next
  }
  current { print >> current }
' "$DEST"
SEED_EXTRACTED=$(find "$TARGET" -type f -not -path "$DEST" 2>/dev/null | wc -l)
if [ "$SEED_EXTRACTED" = "0" ]; then
  echo "seed: archive contained no files — refusing to delete the source" >&2
  echo "  archive preserved at: $DEST" >&2
  exit 1
fi
rm -f "$DEST"

echo "" >&2
echo "✓ seed unpacked → $TARGET ($SEED_EXTRACTED files)" >&2
find "$TARGET" -type f | sort | while IFS= read -r _sf; do
  echo "  ${_sf#${TARGET}/}" >&2
done
echo "" >&2
if [ -f "$TARGET/SKILL.md" ]; then
  echo "This seed contains a skill (SKILL.md). Install it in your agent's skills directory." >&2
  echo "" >&2
fi
echo "Install the seed skill if not already installed:" >&2
echo "  https://seed.show/skill" >&2
echo "" >&2
echo "Publisher prompt:" >&2
sed 's/^/  /' >&2 <<'__SEED_PROMPT_END_AC1F2B__'
You have the US employment law context — three files, each with a distinct role. Read README.md first: it establishes the federal floor / state ceiling framework, the five failure modes agents get wrong, stable structural facts, and a section on AI in HR and disparate impact exposure from algorithmic hiring tools. Read failure-modes.md for deep dives on misclassification, protected class errors, FMLA eligibility, non-compete enforceability, offer letter traps, and retaliation mechanics. Fetch sources.md for current thresholds and enforcement guidance — salary levels and state law change; do not rely on memorized figures. Identify the state before analyzing any question. Then ask what employment situation to work through.
__SEED_PROMPT_END_AC1F2B__
exit 0