You get the call or the email and your heart sinks to your feet. HR
wants to meet with you. Unless you think a promotion or raise is in the
works, a meeting with HR is usually something employees dread. But if
you do some basic preparation, you can be ready for anything.
Read my article in AOL Jobs to find out some things HR may want to meet with you about, and what you should do.
Showing posts with label crime. Show all posts
Showing posts with label crime. Show all posts
Wednesday, November 13, 2013
Friday, April 26, 2013
Loss Prevention Is Lying To You
So you're called into the back room. It's a tiny one with no windows and only one door. In the room is someone who identifies himself as being from Loss Prevention. He seems so nice. He tells you he's there to help you save your job. If you only tell him what he wants to hear, you can go back to work.
He's lying! Don't fall for it. Everything you say can and will be held against you. Be careful.
He asks you some questions that make it clear you're being accused of doing something wrong. Maybe it's stealing from the company. Maybe just punching in wrong. Maybe a violation of some policy. He says he's trying to help you, so you tell him everything. Yes, you did use a plastic spoon from the deli and didn't pay for it. Yes, your boss gave you a candy bar and said it was going to be destroyed anyhow, so you took it and ate it. Yes, you used your employee discount to buy something for your best friend. Yes, you forgot to punch in, so you went in and wrote down your best estimate of the time you came in.
That wasn't very careful, was it? You've just confessed to doing something wrong. Maybe even a crime. But he's so nice. He tells you the only way you can save your job is to write down everything he tells you to write.
He's really lying now. Say no! Tell him that you will be glad to write your own statement in your own words, and tell him you'll provide it to him the next day. If he says you need to write what he says or be fired, you're already gone. Don't believe him for one teeny, tiny second.
He tells you to write down what you did, only the way he puts it sure makes it sound worse than it was. He conveniently leaves out how your boss told you to do it or said it was okay. He leaves out how others of, say a different race or sex, do it all the time and suffer no consequences. He has you write down that you understand you violated company policy. Then he tells you to sign it.
Tell him to pound sand. Do not do this. If you do it, you're fired, and possibly arrested.
Let's say you believe this guy and write it all down. What's going to happen next? He grabs it, maybe leaves the room for a couple minutes, then tells you that you're fired. You're escorted out like a criminal.
If you are called into a meeting with Loss Prevention, that's a meeting where you need to be very aware that you are being accused of doing something wrong and you're probably being fired. They are not your friend. When in doubt, tell them you want to leave and speak to an attorney. Yes, they can fire you for leaving, but that's way better than admitting to something you didn't do, or admitting to a crime. You can always write up your response to the accusations calmly after you've had a chance to think straight later and send them to HR.
He's lying! Don't fall for it. Everything you say can and will be held against you. Be careful.
He asks you some questions that make it clear you're being accused of doing something wrong. Maybe it's stealing from the company. Maybe just punching in wrong. Maybe a violation of some policy. He says he's trying to help you, so you tell him everything. Yes, you did use a plastic spoon from the deli and didn't pay for it. Yes, your boss gave you a candy bar and said it was going to be destroyed anyhow, so you took it and ate it. Yes, you used your employee discount to buy something for your best friend. Yes, you forgot to punch in, so you went in and wrote down your best estimate of the time you came in.
That wasn't very careful, was it? You've just confessed to doing something wrong. Maybe even a crime. But he's so nice. He tells you the only way you can save your job is to write down everything he tells you to write.
He's really lying now. Say no! Tell him that you will be glad to write your own statement in your own words, and tell him you'll provide it to him the next day. If he says you need to write what he says or be fired, you're already gone. Don't believe him for one teeny, tiny second.
He tells you to write down what you did, only the way he puts it sure makes it sound worse than it was. He conveniently leaves out how your boss told you to do it or said it was okay. He leaves out how others of, say a different race or sex, do it all the time and suffer no consequences. He has you write down that you understand you violated company policy. Then he tells you to sign it.
Tell him to pound sand. Do not do this. If you do it, you're fired, and possibly arrested.
Let's say you believe this guy and write it all down. What's going to happen next? He grabs it, maybe leaves the room for a couple minutes, then tells you that you're fired. You're escorted out like a criminal.
If you are called into a meeting with Loss Prevention, that's a meeting where you need to be very aware that you are being accused of doing something wrong and you're probably being fired. They are not your friend. When in doubt, tell them you want to leave and speak to an attorney. Yes, they can fire you for leaving, but that's way better than admitting to something you didn't do, or admitting to a crime. You can always write up your response to the accusations calmly after you've had a chance to think straight later and send them to HR.
Saturday, January 1, 2011
Retaliation Against Whistleblowers - When Are You Protected?
While it may be satisfying to complain about your boss, the truth is, complaining can and will get you fired. While most people think we have free speech in this country, there’s no First Amendment in the private workplace. If you work for government, you do have free speech rights, but they are limited. Sassing your boss or saying she’s incompetent is not protected speech.
If the company is violating the law – Medicare fraud, ripping off the government, failing to pay taxes, failing to pay wages, discriminating, polluting, etc., there are a host of whistleblower laws that may protect you. You need to find out which law protects you and make sure you complain in a way that’s protected. Some laws require you complain in writing to a supervisor. Some say you have to report the company to a government agency. Some only require that you object to or refuse to participate in the illegal activity. If you get it wrong, you aren’t protected from retaliation.
Think about these questions to see if you might be a whistleblower. These are just some examples of activities that might be protected.
1. Have you recently objected to any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?
Under many whistleblower laws, but not all, your objection may have to be in writing. But an objection to a breach of the employer’s policies, or to an ethical violation, is generally not protected whistleblowing. While writing your long letter venting about every way the workplace is unprofessional may be satisfying, it can get you fired.
The objection most likely has to be to an activity, policy or practice of the employer. If you object to a coworker stealing from the company, it’s probably not protected. What would be protected is objection to failure to pay overtime, discrimination based on a protected category (race, age, sex, religion, national origin, marital status, disability, color and, in a couple of counties, sexual orientation), safety violations governed by OSHA, or almost any other legal violation. Statutes, government regulations, and county/city ordinances would fall in this category.
Even if the objection doesn’t need to be in writing, I suggest you put it in writing so the employer can’t deny you made the objection later.
2. Have you recently refused to participate in any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?
If the employer asks you to do something actually illegal, whistleblower laws applying to your industry may say you can refuse and you are protected. But I still suggest you put your refusal in writing.
3. Have you recently disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation?
You may be protected if you have, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and have given the employer a reasonable opportunity to correct the activity, policy, or practice. Examples would be making a formal written complaint of discrimination based on, say, sex. The formal complaint would say that, if the situation is not promptly resolved, you intend to file a charge of discrimination with EEOC. Then you could invoke this provision after giving them time to fix the situation.
4. Have you recently provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer?
If you give information to the police, unemployment, EEOC, OSHA, a legislative body, or other entity actually doing an investigation of an illegal practice, you may well be a protected whistleblower.
The Whistleblower Laws
The remedies, requirements, and administrative hoops are the subject of entire treatises, so I’ll just draw your attention to some of the major whistleblower laws.
The federal whistleblower laws are:
The OSHA –enforced laws govern protection of workers against retaliation for complaining to employers, unions or the Occupational Safety and Health Administration (OSHA), or other government agencies about unsafe or unhealthful conditions in the workplace, the environment, some public safety hazards, some securities fraud violations.
OSHA enforces these anti-retaliation laws:
Occupational Safety & Health Act (OSH Act), 29 USC § 660(c)
Surface Transportation Assistance Act (STAA), 49 USC § 31105
Asbestos Hazard Emergency Response Act (AHERA), 15 USC § 2651
International Safety Container Act (ISCA), 46 USC App. § 1506
Energy Reorganization Act of 1974 (ERA), 42 USC § 5851
Clean Air Act (CAA), 42 USC § 7622
Safe Drinking Water Act (SDWA), 42 USC § 300j-9(i)
Federal Water Pollution Control Act (FWPCA), 33 USC § 1367
Toxic Substances Control Act (TSCA), 15 USC § 2622
Solid Waste Disposal Act (SWDA), 42 USC § 6971
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 USC § 9610
Wendell H. Ford Aviation Investment and Reform Act (AIR21), 49 USC § 42121
Sarbanes-Oxley Act (SOX), 18 USC § 1514A
Pipeline Safety Improvement Act (PSIA), 49 USC § 60129
Federal Railroad Safety Act (FRSA), 49 USC § 20109
National Transit Systems Security Act (NTSSA), 6 U.S.C. §1142
Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. §2
Affordable Care Act (ACA), P.L. 111-148
Sarbanes-Oxley is the most famous OSHA-enforced whistleblower law. It protects employees of publicly-traded corporations from retaliation for reporting violations of SEC rules and federal laws regarding fraud against shareholders.
The Whistleblower Protection Act protects Federal employee whistleblowers.
Military Whistleblower Protection Act protects whistleblowers in the U.S. military
False Claims Act (FCA), which enables a private citizen to file a lawsuit in on behalf of the U.S. Government for fraud by contractors and other businesses that use federal funds. Qui Tam prohibits an employer from retaliating against an employee for attempting to report fraud against Medicare, Medicaid, FDA, GSA, HUD, USDA, U.S. Postal Service, NIH and the military, but not the IRS.
States that have whistleblower protection laws for most employees, government or private, are: Arizona, California, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, Ohio, Oregon, Rhode Island, and Tennessee.*
States that offer whistleblower protection to government, but not private employees are: Alabama, Alaska, Colorado, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Missouri, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, West Virginia, Washington, and Wisconsin.*
*State laws change all the time, as do federal laws. Talk to a lawyer in your state or do your research to make sure you're jumping through all the right hoops to be protected.
Other Types Of Retaliation
Here are some examples of other types of complaints where the law protects you from retaliation.
Discrimination: If you are the victim of discrimination or harassment based upon your race, age, sex, religion, national origin, color, disability, genetic information, association with a person in one of these categories, or another category that’s protected in your state/county/city (e.g., marital status or sexual orientation that aren’t protected by federal law), then you have to follow your employer’s published discrimination/harassment policy and report it.
Wage/overtime violations: If you’re terminated for objecting to failure to pay wages owed or failure to pay overtime, you may be protected from retaliation under the Fair Labor Standards Act or your state’s wage/hour laws.
Collective action to improve working conditions: The National Labor Relations Act protects employees from being retaliated against if they get together to try to improve the terms and conditions of their employment. So those letters employees sometimes do to complain against unfair treatment or bullying are supposed to be protected. The only problem is that many employers and management-side lawyers think this only applies to unionized workplaces (they’re wrong) and so they usually don’t hesitate to retaliate. Awareness was raised recently because the NLRB went after a company when it disciplined an employee for posting negative comments about a supervisor on Facebook and other coworkers chimed in. We’ll see how this case shakes out and whether it’s ultimately deemed a protected collective action. In the meantime, I’d avoid saying your boss is a jerk on Facebook or Twitter. Your remedies under this law aren’t the easiest to get or the best, but it’s something to hang your hat on and wave in front of the boss if they start threatening retaliation.
Deadlines/Statutes of Limitations
If you’ve been retaliated against, you may have short deadlines for bringing your complaint, and there may be some requirements you have to meet before you can sue. Here are some examples.
Sarbanes-Oxley: You must file a complaint with the U.S. Department of Labor within 90 days of the date you found out about the whistleblower discrimination, harassment or retaliation.
Other whistleblower claims: Statutes of limitations can be as short as 30 days for some whistleblowers protected under federal laws (e.g., environmental whistleblowers). State whistleblower laws vary, so be sure you know your deadlines.
Qui tam: Within the later of 6 years from the date of the violation; or
3 years after the government (or sometimes you) knows or should have known about the violation, but never longer than 10 years after the violation.
Donna’s tips:
a. If you’re going to complain about legal wrongdoing or discrimination, I suggest putting it in writing even if the employer’s policy says to have a meeting. You can present the written document at the meeting. That way you have proof that you complained about something that’s protected. Otherwise, HR will almost always say you complained about general harassment or unfair treatment, which isn’t protected.
b. If you complain, keep it professional and to the point. Avoid complaining about personality conflicts or incompetence. Stick to the facts that prove what’s happening is illegal.
c. HR is entitled to investigate your complaint. That means even if they have a policy of keeping your complaint confidential, your boss, the person you’re complaining about, and your witnesses and other coworkers will probably find out about it. Be prepared for that to happen, and be ready to report retaliation.
d. If you are retaliated against for reporting something illegal, put your complaint of retaliation in writing. If the retaliation doesn’t stop, or if you get fired, disciplined, demoted, or a pay cut as a result, contact an employment attorney.
e. If, after you complain, the situation is not fixed, contact an employment attorney for advice. But they don’t have to fire anyone or take any specific action, so don’t threaten to quit if they don’t fire the perpetrator.
f. If you’re complaining about a boss or coworker embezzling, stealing, or doing something TO the company, as opposed to on behalf of the company, you’re probably not protected from retaliation. You’d be surprised how many people get fired for reporting someone ripping off the company. Silly, yes, but there you have it. Killing the messenger is alive and well.
If the company is violating the law – Medicare fraud, ripping off the government, failing to pay taxes, failing to pay wages, discriminating, polluting, etc., there are a host of whistleblower laws that may protect you. You need to find out which law protects you and make sure you complain in a way that’s protected. Some laws require you complain in writing to a supervisor. Some say you have to report the company to a government agency. Some only require that you object to or refuse to participate in the illegal activity. If you get it wrong, you aren’t protected from retaliation.
Think about these questions to see if you might be a whistleblower. These are just some examples of activities that might be protected.
1. Have you recently objected to any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?
Under many whistleblower laws, but not all, your objection may have to be in writing. But an objection to a breach of the employer’s policies, or to an ethical violation, is generally not protected whistleblowing. While writing your long letter venting about every way the workplace is unprofessional may be satisfying, it can get you fired.
The objection most likely has to be to an activity, policy or practice of the employer. If you object to a coworker stealing from the company, it’s probably not protected. What would be protected is objection to failure to pay overtime, discrimination based on a protected category (race, age, sex, religion, national origin, marital status, disability, color and, in a couple of counties, sexual orientation), safety violations governed by OSHA, or almost any other legal violation. Statutes, government regulations, and county/city ordinances would fall in this category.
Even if the objection doesn’t need to be in writing, I suggest you put it in writing so the employer can’t deny you made the objection later.
2. Have you recently refused to participate in any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?
If the employer asks you to do something actually illegal, whistleblower laws applying to your industry may say you can refuse and you are protected. But I still suggest you put your refusal in writing.
3. Have you recently disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation?
You may be protected if you have, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and have given the employer a reasonable opportunity to correct the activity, policy, or practice. Examples would be making a formal written complaint of discrimination based on, say, sex. The formal complaint would say that, if the situation is not promptly resolved, you intend to file a charge of discrimination with EEOC. Then you could invoke this provision after giving them time to fix the situation.
4. Have you recently provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer?
If you give information to the police, unemployment, EEOC, OSHA, a legislative body, or other entity actually doing an investigation of an illegal practice, you may well be a protected whistleblower.
The Whistleblower Laws
The remedies, requirements, and administrative hoops are the subject of entire treatises, so I’ll just draw your attention to some of the major whistleblower laws.
The federal whistleblower laws are:
The OSHA –enforced laws govern protection of workers against retaliation for complaining to employers, unions or the Occupational Safety and Health Administration (OSHA), or other government agencies about unsafe or unhealthful conditions in the workplace, the environment, some public safety hazards, some securities fraud violations.
OSHA enforces these anti-retaliation laws:
Occupational Safety & Health Act (OSH Act), 29 USC § 660(c)
Surface Transportation Assistance Act (STAA), 49 USC § 31105
Asbestos Hazard Emergency Response Act (AHERA), 15 USC § 2651
International Safety Container Act (ISCA), 46 USC App. § 1506
Energy Reorganization Act of 1974 (ERA), 42 USC § 5851
Clean Air Act (CAA), 42 USC § 7622
Safe Drinking Water Act (SDWA), 42 USC § 300j-9(i)
Federal Water Pollution Control Act (FWPCA), 33 USC § 1367
Toxic Substances Control Act (TSCA), 15 USC § 2622
Solid Waste Disposal Act (SWDA), 42 USC § 6971
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 USC § 9610
Wendell H. Ford Aviation Investment and Reform Act (AIR21), 49 USC § 42121
Sarbanes-Oxley Act (SOX), 18 USC § 1514A
Pipeline Safety Improvement Act (PSIA), 49 USC § 60129
Federal Railroad Safety Act (FRSA), 49 USC § 20109
National Transit Systems Security Act (NTSSA), 6 U.S.C. §1142
Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. §2
Affordable Care Act (ACA), P.L. 111-148
Sarbanes-Oxley is the most famous OSHA-enforced whistleblower law. It protects employees of publicly-traded corporations from retaliation for reporting violations of SEC rules and federal laws regarding fraud against shareholders.
The Whistleblower Protection Act protects Federal employee whistleblowers.
Military Whistleblower Protection Act protects whistleblowers in the U.S. military
False Claims Act (FCA), which enables a private citizen to file a lawsuit in on behalf of the U.S. Government for fraud by contractors and other businesses that use federal funds. Qui Tam prohibits an employer from retaliating against an employee for attempting to report fraud against Medicare, Medicaid, FDA, GSA, HUD, USDA, U.S. Postal Service, NIH and the military, but not the IRS.
States that have whistleblower protection laws for most employees, government or private, are: Arizona, California, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, Ohio, Oregon, Rhode Island, and Tennessee.*
States that offer whistleblower protection to government, but not private employees are: Alabama, Alaska, Colorado, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Missouri, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, West Virginia, Washington, and Wisconsin.*
*State laws change all the time, as do federal laws. Talk to a lawyer in your state or do your research to make sure you're jumping through all the right hoops to be protected.
Other Types Of Retaliation
Here are some examples of other types of complaints where the law protects you from retaliation.
Discrimination: If you are the victim of discrimination or harassment based upon your race, age, sex, religion, national origin, color, disability, genetic information, association with a person in one of these categories, or another category that’s protected in your state/county/city (e.g., marital status or sexual orientation that aren’t protected by federal law), then you have to follow your employer’s published discrimination/harassment policy and report it.
Wage/overtime violations: If you’re terminated for objecting to failure to pay wages owed or failure to pay overtime, you may be protected from retaliation under the Fair Labor Standards Act or your state’s wage/hour laws.
Collective action to improve working conditions: The National Labor Relations Act protects employees from being retaliated against if they get together to try to improve the terms and conditions of their employment. So those letters employees sometimes do to complain against unfair treatment or bullying are supposed to be protected. The only problem is that many employers and management-side lawyers think this only applies to unionized workplaces (they’re wrong) and so they usually don’t hesitate to retaliate. Awareness was raised recently because the NLRB went after a company when it disciplined an employee for posting negative comments about a supervisor on Facebook and other coworkers chimed in. We’ll see how this case shakes out and whether it’s ultimately deemed a protected collective action. In the meantime, I’d avoid saying your boss is a jerk on Facebook or Twitter. Your remedies under this law aren’t the easiest to get or the best, but it’s something to hang your hat on and wave in front of the boss if they start threatening retaliation.
Deadlines/Statutes of Limitations
If you’ve been retaliated against, you may have short deadlines for bringing your complaint, and there may be some requirements you have to meet before you can sue. Here are some examples.
Sarbanes-Oxley: You must file a complaint with the U.S. Department of Labor within 90 days of the date you found out about the whistleblower discrimination, harassment or retaliation.
Other whistleblower claims: Statutes of limitations can be as short as 30 days for some whistleblowers protected under federal laws (e.g., environmental whistleblowers). State whistleblower laws vary, so be sure you know your deadlines.
Qui tam: Within the later of 6 years from the date of the violation; or
3 years after the government (or sometimes you) knows or should have known about the violation, but never longer than 10 years after the violation.
Donna’s tips:
a. If you’re going to complain about legal wrongdoing or discrimination, I suggest putting it in writing even if the employer’s policy says to have a meeting. You can present the written document at the meeting. That way you have proof that you complained about something that’s protected. Otherwise, HR will almost always say you complained about general harassment or unfair treatment, which isn’t protected.
b. If you complain, keep it professional and to the point. Avoid complaining about personality conflicts or incompetence. Stick to the facts that prove what’s happening is illegal.
c. HR is entitled to investigate your complaint. That means even if they have a policy of keeping your complaint confidential, your boss, the person you’re complaining about, and your witnesses and other coworkers will probably find out about it. Be prepared for that to happen, and be ready to report retaliation.
d. If you are retaliated against for reporting something illegal, put your complaint of retaliation in writing. If the retaliation doesn’t stop, or if you get fired, disciplined, demoted, or a pay cut as a result, contact an employment attorney.
e. If, after you complain, the situation is not fixed, contact an employment attorney for advice. But they don’t have to fire anyone or take any specific action, so don’t threaten to quit if they don’t fire the perpetrator.
f. If you’re complaining about a boss or coworker embezzling, stealing, or doing something TO the company, as opposed to on behalf of the company, you’re probably not protected from retaliation. You’d be surprised how many people get fired for reporting someone ripping off the company. Silly, yes, but there you have it. Killing the messenger is alive and well.
Wednesday, October 13, 2010
Why Do I Need An Employment Lawyer? Do I have A Case?
In general, there is no such thing as wrongful termination/discipline in most states if you don’t have a contract saying you can only be fired for cause. So why on earth would you ever need an employment lawyer? How do you figure out if you have a case?
Why Do I Need An Employment Lawyer?
There are some times in your employment that you may definitely need an attorney. Here are some reasons you might need a lawyer.
Deadlines: Employment laws are a morass of confusing deadlines, prerequisites to filing suit, and requirements you might miss if you try to do it yourself. If you’re thinking about filing suit, you probably want to speak to a lawyer.
Confusing claims: There are some employment laws on the books that you might not know about, so you might have a case you don’t know about. And there are some laws you think exist, that don’t. If you think you might have claims, if your termination doesn’t feel right or you think something has happened that’s illegal, you might want to run it past a lawyer.
Being taken seriously: Some employers don’t take you seriously unless you have representation.
Uncomfortable in confrontations: If you’re trying to negotiate your own employment agreement or severance package, many people don’t feel comfortable being in a confrontational situation or advocating for themselves. Sometimes it’s better to have an advocate.
When you absolutely, positively need a lawyer
If any of these happen to you, you should contact a lawyer immediately:
Your employer or former lawyer sues or threatens to sue you;
You’re being asked to sign an agreement that you don’t fully understand, especially if it’s a noncompete, confidentiality, arbitration, or employment agreement;
You’ve been accused of a crime (contact a criminal defense lawyer, not an employment lawyer, immediately).
When you might want a lawyer
If you think your employer or former employer has broken employment laws;
If you have been retaliated against for complaining about discrimination or something illegal the employer has done;
If you’re not being paid all the wages you’re owed;
If you think you’re misclassified as exempt from overtime or as an independent contractor.
When you probably don’t need a lawyer
To make a written complaint of discrimination to the human resources department, as long as you follow the policy;
To attend a disciplinary meeting (take good notes, don’t sign anything except a form acknowledging receipt of the discipline, and sign “as to receipt only, rebuttal to follow);
To sign documents you understand, like applications, insurance forms, and tax documents.
To file a union grievance if you’re a union member (use your union rep – they’re free).
Do I Have A Case?
Here is a checklist to help you figure out if you might have a case against your employer. It’s not exhaustive, since every state has different laws, but this will give you a start.
Cases involving termination, demotion, or suspension without pay
If you answer yes to any of these questions, you may have potential claims. You’ll want to contact an employment lawyer in your state to find out if you have a case if any of these occurred shortly before your termination, demotion, suspension without pay or other discipline.
_____ Did you make a worker’s compensation claim shortly before being fired?
_____ Had you recently objected to, refused to participate in, or reported illegal activity or discrimination by the company? (as opposed to something unethical or a violation of company policy)
_____ Had you recently had surgery, revealed the existence of a medical condition, genetic information or pregnancy?
_____ Has the employer made a false statement of fact (as opposed to opinion) about you to someone outside the company, such as a potential employer?
_____ Had you recently performed jury duty?
_____ Had you recently served in the military?
_____ Had you recently taken family or medical leave?
_____ Had you recently served as a witness in a lawsuit or provided testimony or evidence to EEOC?
_____ Had you recently engaged in activity for the benefit of co-workers with respect to terms and conditions of employment?
_____ Did your employer fail to pay you for all hours worked, or fail to pay overtime if you worked over 40 hours per week? Many times, employees are misclassified as exempt and will be owed back wages for up to 2 - 3 years.
Discrimination claims
It’s not illegal to discriminate against you for being you. If the discrimination or harassment fits in one of the categories below, you should contact an attorney or EEOC to find out more about your rights and your responsibility to report it before you make a claim.
___ Race ___ Sex ___ Sexual harassment ___ Religion ___ Ethnicity ____ Disability ____ Age___ Pregnancy ____ National origin ____ Color (same race) ___ Genetic information ____ Retaliation for objecting to discrimination
Ask yourself how you were treated differently than others of a different race, age, sex, national origin, disability, religion, sexual orientation, or color under the same circumstances. Some states, counties or municipalities have more categories, like marital status and sexual orientation. If you can’t point to someone else who was treated differently under the same circumstances, or to instances where you were singled out for different treatment than others, you may not be able to show discrimination.
Does the employer have 15 or more employees? If not, discrimination laws may well not apply. Some states, counties and municipalities have laws that apply to smaller employers.
Why Isn’t My Case On Your List?
Many people are quite certain that some employer actions are illegal, based on bad TV dramas and misconceptions. Here are some examples of things that aren’t illegal, even though you might assume they are:
• 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.
• Hostile environment/harassment
Hostile work environment is not illegal. General harassment is not illegal. Bullying is not illegal. Only hostile environment/harassment due to race, age, sex, disability, or another legally-protected status is illegal.
• Free speech
Only government employees have free speech protections, and those are very limited.
• 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 have some privacy rights in your medical information. There is no federal law protecting your social security number, but two states 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 non-compete 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, lack of professionalism, ethical violations, bullying, or jerkish behavior.
If you think you have claims to make against your employer or former employer, then the best course of action is to contact an employment lawyer in your state to discuss potential claims.
Why Do I Need An Employment Lawyer?
There are some times in your employment that you may definitely need an attorney. Here are some reasons you might need a lawyer.
Deadlines: Employment laws are a morass of confusing deadlines, prerequisites to filing suit, and requirements you might miss if you try to do it yourself. If you’re thinking about filing suit, you probably want to speak to a lawyer.
Confusing claims: There are some employment laws on the books that you might not know about, so you might have a case you don’t know about. And there are some laws you think exist, that don’t. If you think you might have claims, if your termination doesn’t feel right or you think something has happened that’s illegal, you might want to run it past a lawyer.
Being taken seriously: Some employers don’t take you seriously unless you have representation.
Uncomfortable in confrontations: If you’re trying to negotiate your own employment agreement or severance package, many people don’t feel comfortable being in a confrontational situation or advocating for themselves. Sometimes it’s better to have an advocate.
When you absolutely, positively need a lawyer
If any of these happen to you, you should contact a lawyer immediately:
Your employer or former lawyer sues or threatens to sue you;
You’re being asked to sign an agreement that you don’t fully understand, especially if it’s a noncompete, confidentiality, arbitration, or employment agreement;
You’ve been accused of a crime (contact a criminal defense lawyer, not an employment lawyer, immediately).
When you might want a lawyer
If you think your employer or former employer has broken employment laws;
If you have been retaliated against for complaining about discrimination or something illegal the employer has done;
If you’re not being paid all the wages you’re owed;
If you think you’re misclassified as exempt from overtime or as an independent contractor.
When you probably don’t need a lawyer
To make a written complaint of discrimination to the human resources department, as long as you follow the policy;
To attend a disciplinary meeting (take good notes, don’t sign anything except a form acknowledging receipt of the discipline, and sign “as to receipt only, rebuttal to follow);
To sign documents you understand, like applications, insurance forms, and tax documents.
To file a union grievance if you’re a union member (use your union rep – they’re free).
Do I Have A Case?
Here is a checklist to help you figure out if you might have a case against your employer. It’s not exhaustive, since every state has different laws, but this will give you a start.
Cases involving termination, demotion, or suspension without pay
If you answer yes to any of these questions, you may have potential claims. You’ll want to contact an employment lawyer in your state to find out if you have a case if any of these occurred shortly before your termination, demotion, suspension without pay or other discipline.
_____ Did you make a worker’s compensation claim shortly before being fired?
_____ Had you recently objected to, refused to participate in, or reported illegal activity or discrimination by the company? (as opposed to something unethical or a violation of company policy)
_____ Had you recently had surgery, revealed the existence of a medical condition, genetic information or pregnancy?
_____ Has the employer made a false statement of fact (as opposed to opinion) about you to someone outside the company, such as a potential employer?
_____ Had you recently performed jury duty?
_____ Had you recently served in the military?
_____ Had you recently taken family or medical leave?
_____ Had you recently served as a witness in a lawsuit or provided testimony or evidence to EEOC?
_____ Had you recently engaged in activity for the benefit of co-workers with respect to terms and conditions of employment?
_____ Did your employer fail to pay you for all hours worked, or fail to pay overtime if you worked over 40 hours per week? Many times, employees are misclassified as exempt and will be owed back wages for up to 2 - 3 years.
Discrimination claims
It’s not illegal to discriminate against you for being you. If the discrimination or harassment fits in one of the categories below, you should contact an attorney or EEOC to find out more about your rights and your responsibility to report it before you make a claim.
___ Race ___ Sex ___ Sexual harassment ___ Religion ___ Ethnicity ____ Disability ____ Age___ Pregnancy ____ National origin ____ Color (same race) ___ Genetic information ____ Retaliation for objecting to discrimination
Ask yourself how you were treated differently than others of a different race, age, sex, national origin, disability, religion, sexual orientation, or color under the same circumstances. Some states, counties or municipalities have more categories, like marital status and sexual orientation. If you can’t point to someone else who was treated differently under the same circumstances, or to instances where you were singled out for different treatment than others, you may not be able to show discrimination.
Does the employer have 15 or more employees? If not, discrimination laws may well not apply. Some states, counties and municipalities have laws that apply to smaller employers.
Why Isn’t My Case On Your List?
Many people are quite certain that some employer actions are illegal, based on bad TV dramas and misconceptions. Here are some examples of things that aren’t illegal, even though you might assume they are:
• 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.
• Hostile environment/harassment
Hostile work environment is not illegal. General harassment is not illegal. Bullying is not illegal. Only hostile environment/harassment due to race, age, sex, disability, or another legally-protected status is illegal.
• Free speech
Only government employees have free speech protections, and those are very limited.
• 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 have some privacy rights in your medical information. There is no federal law protecting your social security number, but two states 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 non-compete 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, lack of professionalism, ethical violations, bullying, or jerkish behavior.
If you think you have claims to make against your employer or former employer, then the best course of action is to contact an employment lawyer in your state to discuss potential claims.
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