Copyright © 1999 By Ethan A. Winning
I have been an employer advocate for over two decades. In order to assist, guide, and counsel employers, it is imperative that I know about the rights of the employee as well as the employer. Therefore, the reader should not find it odd that I can and often do address the rights of employees in the workplace nor should they wonder about my motives in answering e-mailed HR/ER questions.
Some have expressed a concern, but I assure you that I answer questions primarily to stay on top of issues which are important to employees, and to help employees find solutions to problems that they may be having. Keep in mind that everyone is an employee, even the president of a private corporation. Last, perhaps I have been extremely fortunate over the past 23 years, but I have yet to have a client that has intentionally stepped on the rights of an employee or knowingly discriminated against an employee. In fact, the vast majority of my clients have, if anything, been far too paternalistic, often spending more than could be afforded in the areas of insurance and other fringe benefits. Their own bests interests have often been placed in jeopardy and I've seen my responsibility as reining them in to keep their interests intact.
That said, a majority of email that I receive do complaint, sometimes bitterly, about the treatment that employees receive from employers. Part of this is in large measure due to the current economic boom, and the dearth of skilled employees which has led to "unacceptable" working hours, overtime, and impinging on free time and family time of both exempt and nonexempt personnel. Managers often didn't know what they bargained for when they became managers: long, hard hours come with the territory. Nonexempt employees, initially joyous at the fact that they have not only found an "ideal" job and extra income in "some" overtime, become disgruntled when there has been a lack of adequate representation as to just how much extra work will be required. It is true that some interviewers downplay the additional hours and even on-call time, but that is not necessarily misrepresentation.
What follows are my candid and realistic observations about employees' rights in the workplace, based upon over 30 years experience in personnel.
When all is said and done, employees have considerable rights in the workplace, dependent to some extent on the existence or lack of state labor codes. For example, there are more than 20 states which have no labor code regarding rest breaks, and still others where the code applies only to public employees. In such circumstances, employees are at the mercy and common sense of the employer.
These are not constitutional rights but, rather, legislated rights on a federal and/or state level. Much as you think you live in a democracy, the workplace is anything but democratic. You are not guaranteed freedom of speech, or the right to bear arms or bare arms (if you get into dress codes), and even search and seizure is diminished by the fact that your personal property is on or in corporate property which does not belong to you. Oh, sure, you do have the constitutional right to say whatever you want, but the company has the right to terminate employment because of what you say or do and the effect that that behavior has on other employees.
I know that this may be hard to believe, but one of your greatest rights comes with at-will employment. There was a time in the U.S. when an employee could not just up and quit his or her job. Imagine something that bordered on indentured servitude. Well, at-will employment is a two way street: "Employment is at will, and may be terminated at the will of either party..." You do not have to give notice, nor do you have to give a reason for quitting. The employer, on the other hand, may be under the constraint of "service letter laws" (17 states, mostly Midwestern) where, upon the written request of the employee, the employer must state in writing the reasons for termination. (You will have to search for "service letter laws," but this is the link to the article on "at-will" employment.)
Employment is based on the "psychological contract," a concept described in the article, The Psychological Contract and Pay For Performance. It is the fulcrum which balances rights and obligations of employer and employee. In a nutshell, so long as you perform satisfactorily, the employer will continue to employ you and pay a "decent" wage; so long as the employer pays a decent wage, you will continue to work satisfactorily.
Your basic rights are, essentially as follows:
- To be treated fairly and equitably.*
- To have a safe environment in which to work.
- To be free from discrimination.
- To be free from harassment.
- To be compensated equitably, i.e., same pay for same work done.
- To be free from retaliation for filing complaints against a company.
- To be free from an invasion of privacy.
*The problem with fairness and equity is that they are sometimes too broad to provide any protection. As was recently brought out in an Illinois case, when a supervisor harassed and berated everyone in his department, the case was thrown out because his treatment was equitable. He was a spherical s.o.b., i.e., no matter which way you looked at him, he was still an s.o.b., but he didn't discriminate.
That's the good news. The bad news is that there are loopholes in most laws and "fairness" becomes somewhat subjective. For example, except in a very few states, employees can be made to work as much as 72 hours a week without recourse. Some states have no rest break laws. In other words, much is left to the common sense of the employer.
I mention working hours and rest breaks because one would think that state an federal OSHA laws would cover those areas, but OSHA does not. And, as far as retaliation goes, while almost every state has anti-retaliation laws (Whistleblower Acts), historically such claims have often taken years to adjudicate. (Think of Silkwood.)
Some of the Laws Intended to Protect
Even with imperfections, and in addition to some state statutes, the following laws broadly protect an employees basic interests:
- The Fair Labor Standards Act -- wages and hours, child labor. Being paid for work done.
- The Equal Pay Act -- wages based on sex.
- Age Discrimination in Employment Act (ADEA) -- employees over the age of 40.
- Americans with Disabilities Act
- The Older Worker Benefit Protection Act
- Plant Closure Laws
- Civil Rights Acts -- discrimination based on race, sex, religion, or national origin.
- OSHA -- Basic safety issues including protection from hazardous substances and environment, and now, on a state level, even smoking and violence.
- Privacy Laws -- including background information, access to personnel files, drug testing, even some dress codes.
- ERISA -- retirement plans.
Of those, the strongest are the Fair Labor Standards Act and the Civil Rights Acts. Let's face some facts: if an employer actually wanted to discriminate against an individual, it can. For example, an obese person applies for the job of receptionist for a company. The interviewer (or the company) feels that having that person as the "representative" of the company when visitors enter the door "wouldn't look good." The interviewer doesn't tell the applicant that s/he's too fat (unless you have an interviewer with a death wish). Rather, the interviewer states in a letter that someone with "better qualifications and experience" has been hired...and makes certain that the person hired actually does have "better" skills or experience.
The same is often the scenario for discrimination because of sex, age, disability, race, sexual preference, etc. Ostensibly, discrimination cases that are won by applicants or employees are those in which the claimant can show a pattern of discrimination, i.e., more than one or two instances. It's always easier to prove discrimination if there are two or more persons filing the complaint. There's not only strength in numbers, there possible corroboration. (Equal Employment Opportunity Commission 1-800-669-4000 (to file a charge) or 1-800-669-3362 for information.)
Keep in mind that "discrimination" implies a disparity in treatment of individuals or groups. If one employee is being treated differently than others, and there is the implication that that treatment is based on sex, age, race, etc., then there might be a claim of discrimination. If a particular manager treats everyone unfairly, it has been found that that is not discriminatory. If a manager singles out one person to vent his/her wrath on, it may create a hostile work environment, or it may stress the individual to the point where there might be a claim for Workers' Compensation, but these are scenarios which are difficult to fight (and win). It is always the employee's responsibility to "exhaust administrative remedies" before filing a claim. That means that the employee must at least attempt to resolve the "problem" by meeting with or writing to the HR department or manager, or a senior manger in the company. When the manager is also the owner of the business, it is still best to prove that you attempted to take action to alleviate the situation.
If you read the papers, you'll see that what will trap an employer is documentation. Often a company is just dumb enough to have memos or other papers which point to violations of the above laws, most often civil rights violations. More and more, we are seeing such documentation in the form of email. Since it is possible to sue individuals in a company, everyone should use discretion...although for some it seems that there's a discretion gene that is lacking.
So, we all have rights in the workplace. But these rights are tempered by reality, and the reality is that it is often too costly to fight "unfair" practices. Perhaps this why there has been a slight increase in unionization activities. (At the same time, we do get email from quite a few whose unions don't do a very good job of representation of the employee. Sometimes I have to wonder if union "leadership" takes on the same characteristics as senior management of a company.)
Very often I am forced to advise those who complain about their employers that perhaps their best course of action is to find a better employer. Yes, it's easy for me to say. I don't have to move to another city or state. I don't have to actively seek other employment and go through the not-too-pleasant process of job hunting. But this is 1999, and there are jobs out there, often better jobs than what the employee has now. Moreover, the vast majority of employers do treat employees fairly. The job market is (supposedly) wide open. (Just yesterday, our local paper announced that many high paying, "good" jobs go wanting, and that employers in our geographic area are trying all kinds of incentives to get new employees. So, yes, I do advise some to take that leap.) You can moan and groan over your current work or employer, or you can take the limited risk of looking for another job.
Interesting. In several cases where I have been involved defending clients against wrongful discharge, the judge has asked why it took so long to fire an employee. More and more, I am also hearing judges ask employees why they have waited so long to file a claim. In a recent case, an employee claimed that she was being harassed over a seven-year period. The judge wanted to know (1) why she didn't file a complaint within the company for four years, and (2) why she didn't quit. (If you think you've got it bad, read some of the complaints of workers at the Disgruntled web site.)
On the back of Barbara Kate Repa's book, Your Rights in the Workplace (Nolo Press, Berkeley, 1999), there is the following header: "Learn your workplace rights -- and how to make them work for you." It isn't enough that laws exist. You really do have to understand them and know what action you can take. But, face the fact that you've also got to know when to cut your emotional (if not economic) losses...
Copyright © 1999 by Ethan A. Winning. All rights reserved.