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.

Friday, October 19, 2018

10 Workplace Rights You Think you Have – But Still Don’t

So I received this email:
Ms. Ballman; 
I happened to come across your article from 2011 regarding 10 Workplace Rights You Think you Have – But Don’t. As both an attorney and a HR/Payroll consultant, your article is either outdated, specific to Florida, or just completely inaccurate. I would urge you to do your research and correct the artcle. If you would be open to discuss the areas of your article that inaccurate, I’d love to provide your details, however, I’m not going to waste my time (or yours) if you don’t care. As it stands, your article provides incorrect information and extreme disservice to employees in general. 
Best Regards,
(name omitted)
First of all, wow, how rude! Is that any way to approach someone you've never met? Yikes! It was so bizarre I thought I was being attacked by a Russian bot or something. Still, I decided to take it seriously. My initial reaction was that a 7-year-old article might well be out of date. So I reviewed it and, sure enough, it's still both accurate and timely. When I asked my emailer for specifics on what they found to be incorrect, their response was, "I’ll just let you look like you don’t know what you are talking  about, since it’s obvious you don’t care." Well, I do care, even though I'm still not sure whether I'm dealing with a Russian bot.

Anyhow, bot or not, I'm posting an updated version.

As an employment lawyer who has represented employees for 32 years, I find that everyone thinks they already know their rights. After years of watching legal dramas and courtroom reality TV, Americans have absorbed lots of legal information. Unfortunately, most of it is wrong. Before you mouth off to your boss about your rights, I thought I'd share with you the top 10 laws most employees think exist- that don't.

1. Wrongful Termination

Most American workers think employers must have a reason to fire you. Surely your employer can’t just be arbitrary and unfair. Surely they can’t just wake up in a bad mood and fire you because they didn’t like your shirt. And there’s the rub. Because, in every state but Montana, your employer can fire you for any reason or no reason at all unless you have a contract saying otherwise. In most states, they don’t even have to give a reason.

But that’s not right, you say. There’s a law against wrongful termination. There must be. Well, there should be, but there isn’t. What we have instead, in 49 states, is at-will employment. At-will employment is that nasty doctrine that says employers can fire at-will, for any reason or for no reason.

Oh, sure, most states recognize some exceptions to the at-will doctrine (my home state of Florida recognizes zero exceptions). Most states find that a termination that is against public policy, such as being fired for refusing to violate a law, reporting a legal violation, doing something in the public interest like jury duty, or exercising a legal right like making a worker’s compensation claim, is unlawful. Another exception a majority of states recognize is an implied contract, which sometimes allows a court to find that a handbook or employer policy is a legal contract. A few states hold that employers owe employees an implied covenant of good faith and fair dealing, but most let employers be as arbitrary as they want to be.

Other protections employees have in the 49 at-will states are: contracts, whether individual or union, saying they can only be fired for cause; discrimination laws; whistleblower laws; the Family and Medical Leave Act; and state and federal employment laws.

But my point is this: if a majority of Americans think employers must have good cause to fire you, why isn’t there a law? Why haven’t legislators who are supposed to represent workers’ interests passed the number one legal protection employees think they have? Legislatures could pass a law like Montana’s Wrongful Discharge From Employment Act of 1987, which lets employees terminated without good cause sue for up to 4 years of lost wages.

We, as taxpayers, are footing the bill for employers who make arbitrary employment decisions. Why not make employers who fire employees without just cause pay for their arbitrariness? Why not at least penalize arbitrary employers through the unemployment compensation system. Why not lift the maximum rate employers can be charged to these arbitrary employers? Why skew the system to punish employees but not employers?

By continuing to allow arbitrary firings without consequences to employers, we end up forcing the unemployed onto food stamps, welfare, and other taxpayer-supported benefits. And small business owners like me end up paying for these arbitrary employers by having higher unemployment compensation tax rates.

2. Right To See Your File

You probably don't have this right, so don't go stomping into HR and making demands. No federal law requires private employers to allow employees to inspect or copy their own personnel files. Only some states require employers to allow you to look at your file and even fewer require your employer to 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.

3. 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 federal law even 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. Some states also offer protection for nursing moms taking breaks. Lots of people get fired for insisting on breaks they're not entitled to. Don't do it.

4. Hostile Environment

A hostile environment is not illegal. Workplace harassment is not illegal. Bullying is not illegal in any state except, oddly enough, Tennessee, and that's only for government employees. If you write a long email to HR or your boss complaining that you are being "harassed," or, you're "in a hostile work environment," you aren't protected against retaliation. While harassment due to race, age, sex, national origin, religion, disability, or another legally-protected category is illegal, just plain "harassment" is not. So reporting it that way doesn't protect you against retaliation. When I ask why people didn't report that they were being treated differently than coworkers of a different race, sex, etc. they usually say something like, "I didn't want to go there." Well, if you'd gone there, firing you for your complaint would have been illegal. But firing you for saying you were harassed or bullied: not illegal.

Appropriate remedies may be to discipline or warn the harasser, to move the harasser, under some circumstances to move the victim, to do training, or in extreme cases, to terminate the harasser. But they don’t have to take any action at all. They only have a duty to maintain a safe workplace. You might still have to work with the harasser. Don't say you refuse to work with the harasser. You might be fired for refusing to work. If you return and are retaliated against or continue to be harassed, report it again.  If the employer allows retaliation or continued harassment, that is the time to get an attorney involved.

5. First Amendment In Private Workplaces

Only government employees have free speech protections, and those are very limited. Otherwise, you can be fired in most states for your speech (including political speech) in the workplace or outside the workplace. 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.

If you're complaining about working conditions, reporting discrimination, objecting to not being paid overtime, or reporting illegal activity, you are likely legally protected in every state. 

In some states, employee speech about politics is protected. In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people." California, Colorado, New York, North Dakota and Louisiana say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. Here in Broward County, it's illegal to fire employees based upon political affiliation. If you work for government, there's the good old First Amendment to protect you. Plus, the Civil Service Reform Act of 1978 prohibits political affiliation/activity discrimination against federal employees. 

Speech about religion, women’s (or men’s) rights, and unionization is almost always protected.

Otherwise, you don't have free speech rights at work. Be very sure you have legal protection before speaking out.

6. Privacy At Work

Your boss can read your work e-mails and monitor your Internet usage at work. If your employer is going to listen into or record phone calls, there are some legal restrictions. You also have privacy rights in your medical information. There is no federal law protecting your social security number, but California, Texas and New York do offer limited protection against employers displaying your number.

The Electronic Communications Privacy Act of 1986 specifically says your company can't intercept your emails. The problem is, it has exceptions for consent. That means if your company has a policy on email interception or had you sign an agreement, a handbook, or anything else they managed to slip in front of you agreeing that email at work belongs to them, they skate. The law also says it's legal to monitor your email if the company is the email provider or if they monitor your email in the ordinary course of business, such as for customer service.

In other words, there are so many loopholes that your company probably fits into one. Until the courts say otherwise or Congress tightens this law, it likely doesn't help you.

Some states have a tort called "intrusion on seclusion" or "invasion of privacy." There are some protections against highly offensive conduct that's intrusive. The problem is, you probably won't be able to prove you had any expectation of privacy in your emails or other activities at work.

7. Right To Work

I hear all the time, "But this is a right to work state!" Usually while I'm reviewing a non-compete agreement. Right to work doesn't mean your employer can't 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 supervisor tells you that signing a non-compete agreement is meaningless or that it won't be enforced, they are lying to you.

8. Retaliation

There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or the fact that your boss is a jerk. If you do something that puts you in a legally protected category, you may be protected from retaliation. Examples would be objecting to discrimination, making a worker's comp claim, or taking Family and Medical Leave. If you're reporting something illegal the company is doing, you may be a protected whistleblower, but you'd better research the specific whistleblower laws that apply, because there are many hoops to jump through on some whistleblower cases.

If you complained about working conditions on behalf of yourself and coworkers, you may be protected against retaliation under the The National Labor Relations Act (NLRA), which protects employees who engage in concerted activity to improve working conditions.

For more about when retaliation may be illegal, check out my post on that topic.

9. Discrimination Because Your Boss Doesn't Like You

If your boss is discriminating against you for being you, that isn't illegal. Favoritism, nepotism, and being obnoxious are generally not illegal. Discrimination based on age, pregnancy, race, sex, religion, national origin, disability, color and genetic information are illegal. In some states, other categories such as sexual orientation, gender identity, marital status, and being a domestic violence victim are protected.

10. Suing the Boss

As much as it may be satisfying to sue your ex-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 employment laws simply don't allow it. One major 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 probably high time for them to actually be passed. E-mail your congressperson and state representative now and complain if you don't like the fact that you're not protected. Here's how to find out how to contact your representative in Congress:

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

You do have rights. Among them is the right to vote. If you don't like the law, exercise it and tell your representatives you demand some legal protections. In the meantime, don't get yourself fired by getting your legal advice from television. When in doubt, contact an employment lawyer in your state about your legal rights at work.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.