Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Thursday, February 17, 2011

Top Ten Employment Laws You Think Exist – That Don’t

Everyone tells me they know their employee rights. Some are even dumb enough to tell their employers they know their rights. The problem is, most of you are getting your legal information from courtroom TV shows or coworkers who know less than you do. Before you mouth off about your rights, here are some laws that most employees think exist - that don't.

Wrongful termination

If you live in Montana, your employer can only fire you for just cause. Otherwise, they can fire you for any reason or no reason at all. They don’t have to have a good reason. They don’t even have to give a reason in most states. Arizona has a law based on the Montana law, but they took the "just cause" (and some other pro-employee stuff)out of it.

Right to your file

No federal law requires private employers to allow employees to inspect or copy their own personnel files. Some states require employers to allow you to look at your file. Fewer allow you to copy items in your file. Many times, the only way you’ll find out what’s in your file is if you sue and you get it with a Request for Production, or if you subpoena it in unemployment or other proceedings.

Breaks

No federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it’s not a majority. No law requires bathroom breaks, but it's probably a health issue, so OSHA might protect you if your employer denies bathroom breaks. If you're a nursing mother, you're entitled to an unpaid break to express breast milk if your employer is big enough. Some states also offer protection for nursing moms taking breaks.

Hostile environment/harassment

Hostile work environment is not illegal. Harassment is not illegal. Bullying is not illegal. Hostile work environment or harassment due to race, age, sex, religion, national origin, disability, color, taking Family and Medical Leave, whistleblowing, or some other legally-protected status is illegal.

Free speech

Only government employees have free speech protections, and those are very limited. You can be fired for your speech in the workplace or outside the workplace if you work for a private employer. You can't be fired for speaking on behalf of coworkers in order to improve work conditions or for objecting to something illegal, but be very careful to make sure you're protected before you speak out.

Privacy

There is no law giving you privacy in your work emails or internet usage. If your employer is going to listen into or record phone calls, there are legal restrictions. You also have privacy rights in your medical information. There is no federal law protecting your social security number, but California and New York do offer limited protection against employers displaying your number.

Right to work

Right to work doesn’t mean your employer can’t make you sign a non-compete agreement or restrict your ability to work for competitors after you leave. What it means is they can’t make you join a union in order to work there. Some states, but not all, are right to work states. If your company tells you that signing a noncompete agreement is meaningless or that it won’t be enforced, they are lying to you.

Retaliation

There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or jerkish behavior. Only if you do something that puts you in a legally protected category are you protected from retaliation. Examples would be objecting to discrimination, making a worker’s comp claim, or taking Family and Medical Leave.

Discrimination

Discriminating against you for being you is never illegal. Favoritism, nepotism, being a jerk, are not illegal. Discrimination based on age, race, sex, religion, national origin, disability, color and genetic information are illegal.

Individual liability

As much as it may give you joy to sue your boss personally, you probably can’t. Federal and many state discrimination laws, Family and Medical Leave Act (in some states - the courts disagree on this), and most other laws simply don’t allow it. The one exception is wage and hour violations. Some state discrimination laws do hold supervisors liable for violations. But what’s the point? Unless they’re rich, you probably won’t be able to collect anyhow.

Well that's wrong. What can I do about it?


Since most people think these laws exist, maybe it's time for them to actually be passed. Email your congressperson and state representative now and complain if you don't like the fact that you're not protected. Here are some places to find out how to contact your representative in Congress:

http://www.contactingthecongress.org/


http://www.congress.org

Here's a website with contact information for elected officials at the state and federal level:

http://www.usa.gov/Contact/Elected.shtml

10 comments:

  1. This is good. People ask these kinds of questions all the time. I wasn't aware that Montana and Arizona were the only states that allowed an action for wrongful termination. Thanks for your post.

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  2. I'm so glad you enjoyed it. Hopefully more states will follow.

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  3. This is a really great post. People are getting fired all of the time where I work. They think that the job has to provide a reason, but it is obvious, based on your post that they don't.

    This was really informative.

    NAlexandra
    www.myviewfromthesummit.blogspot.com

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  4. As an employment lawyer, I found that a lot of this information is good, but there are some errors.
    1. Only MT has a statute saying that once an employee has finished the probationary period, she can be fired only for good cause. AZ has no such law. And in some states, employers are required to give the employee a letter stating the reassons for termonation, if requested.
    2. Federal law (as well as that of NY and other places) requires that nursing mothers get unpaid breaks to express milk.
    3. There can indeed be individual liability for FMLA violations, as well as personal liability under state discrimination laws.

    Hope this is helpful. You can go to www.fairmeasures.com for more info and employment law FAQs

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  5. Thanks Ann! I fixed it above. The Arizona law sure fooled me as someone who doesn't practice there. It was supposed to be based on the Montana law, but they sucked the pro-employee stuff right out of it. Go figure!

    FMLA is split on individual liability - here in Florida and some other states there is still no liability for supervisors. I'm glad to hear some circuits are more enlightened.

    Good catch on the nursing moms! How could I forget that one when I dealt with that issue myself twice?

    I always welcome smarter folks than me who catch this stuff. I'm the first to admit I don't know it all - especially the non-Florida stuff.

    Thanks for taking the time to let me know.

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  6. all of this information is wrong - you have advised people totally wrong info - i live in Florida and I have won several of the above mentioned items - if you need a break in state of Fl and they are not giving you one, just get a Dr note. If you want an hour and they give 1/2 get a Dr note stating why you need an hour - usually the Dr does not even care - you are paying him for an office visit - he usually will write what you tell him - stress - dr will approve all the time. You can file for wronful termination in the state of Florida and in all other states. If they fire you for stats, or they don't like your shirt.........not only can you file, you will win if your attny is any good - i was terminated for not meeting the amount of seconds (I was on phone on avg 45 sec more than they wanted) -- I sued and won against Macy's federated call center. I was not fired because I was a bad employee - in fact, i was only absent twice in a year and half and I had already accumulated over 100 outstanding customer service awards.........I had a friend who ws fired during training for transferring a call because he could not explain the warranty - they fired him for "un neccessry transfer - he sued and won..........do your research before you give out this wrong info - I even worked for a firm who "forced" you to initial that you would not be paid for filling out your employer paperwork or your 7 hour training if the terminated you within two weeks - i was terminated within 9 days (for stats) -- I did not even have to get a lawyer - I called their corporate office and told them if I was not paid, then I would be suing for wrongful termination as they could not judge my performance based on 16 hrs of work - they called the next day to say a check was on its way.....initials and all.......plus the Dept of Labor told me to send them a copy of that paper as it was 100 percent illegal to make an employee initial or sign something like that.

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  7. Well, Mike, I'd love to see copies of the judgments you claim your friend and you got. Your information is incorrect, and I'm quite certain the suits were not for being terminated without cause in Florida.

    As to being fired for objecting to not being paid for all time worked, that would be illegal under the Fair Labor Standards Act and under Florida whistleblower laws. The Department of Labor is correct - employers can't make employees waive their right to be paid for all hours worked.

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  8. Donna - you must be joking - why on earth would you be asking for copies of the judgements - just start studying some actual cases.......have you ever opened a Florida phone book?? Why do you think there are so many attornies practicing law in the field of wrongful termination?? They sure are not representing people in other states. And as I recently became certified as an ADA advocate, I encourage anyone with any kind of disability to check your rights under www.eeoc.gov/policy/doc/accommodation.html - go to Types of REasonable Accommodations Related to Job Performance number 17. "In a no-fault" case, unless the company can prove undue hardship, if you are on unpaid ada, and the company has a policy of let us say 1 year - too bad - if your dr sys you still need to be out, the company must modify their policy as an extension is considered a "reasonable accomodation " under ADA - sure, most people do not fight back and everthing you said goes sliding right back, but once you show them you are not afraid to fight, it usually the company (especially if it is large and has a reputation) will back down and settle out of court. You really need to pull up cases not just generalities.

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  9. This comment has been removed by a blog administrator.

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  10. Nice to see, that was a interesting article.

    http://www.backhouse-solicitors.co.uk/

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