Your Rights in the Workplace

Introduction to a SERM System

2009-10-24T23:45:00.000-07:00

We will explore the business case for sustainability and the benefits from ensuring that a Sustainable Enterprise Risk Management (SERM) system leads you towards becoming a sustainable organisation. There are benefits to be derived from proactively seeking opportunities for new markets in a world of increasingly constrained resource supplies and increasing demands. The approach seeks to minimise the risks, the negative aspects of not yet being sustainable. In so doing it should be understood that an enlightened view of the risk environment can:

Reduce overheads and material costs;
Increase compliance;
Reduce fines and penalties; and
Improve competitiveness and marketing opportunities.

Outstanding economic, environmental, social health and safety and governmental performance can have practical benefits for the organisation. Actions to mitigate risk can include the taking of opportunities as they present themselves. Companies like BT, General Electric and Wal-Mart are changing their competitive game by taking sustainability risk factors and turning these into benefits for their competitive strategy.

There is some debate regarding whether the modus operandi of business is anything other than business. To support the view that sustainability issues are crucial to business operations, a survey conducted by the Center for Corporate Citizenship & Sustainability (http://www.bcccc.net/index.cfm) of 198 medium to large multinational companies found that:

A total of 90% of participating companies say their company's approach to corporate citizenship and sustainability issues reflects at least some belief in the potential rewards;
Two-thirds of survey participants say that corporate citizenship and sustainability issues are of growing importance for their businesses; and
A majority of big companies concerned with corporate responsibility issues acknowledge that they lack an active strategy to develop new business opportunities based on those concerns.

An emerging example of the new mode of operations and how values-led brands are helping to create value is a recent quote from Unilever's CEO Patrick Cescau:

For us, social responsibility is about creating social benefits through our brands and through our interactions as a business with society. It's the business of doing business responsibly . The business case for corporate responsibility can be summarised in four ways: sustainable development, building reputation, growing markets, and fuelling innovation. (Business as an Agent of World Benefit Forum in Cleveland, USA, 24 October 2006 )

The SERM framework seeks to highlight that there is a broader definition of business risk which covers a wider range of current and emerging risks that can impact upon an organisation. Quite often these risks affect intangible assets and value as opposed to the more tangible damage we are used to as risk managers. Many of the triggers can originate from outside the organisation, yet still require management. So we offer the following version of what we perceive to be risk as,

anything which prevents an organisation from achieving its business objectives.

To demonstrate this wider definition of business risk we quantify other loss experiences of companies, many of whom were unprepared and did not view them as risks as they were outside their traditional view of what was business and business risk. In this book we use research supplied by the SERM Rating Agency Ltd who have analysed a wide range of companies' loss episodes, which can be quantified as having had an economic impact, including:

Non-compliance fines and enforcement notices;
Reputation and brand damage;
Work stoppages, labour disputes and strikes; and
Product recalls and loss of stakeholder confidence.

The methodology has been tested and refined over 10 years, originally developed in partnership with: the insurance industry, the United Nations Environment Programme (UNEP), the Association of Chartered Certified Accountants (ACCA), the Association of British Insurers (ABI) and the Centre for the Study of Financial Innovation (CSFI), among many others. It can be used to access any size of organisation.

A key element of a SERM system is the concept of 'sustainability' or sustainable development as it is also known; sustainable development is one of the guiding philosophies behind our investigating the potential of a Sustainable ERM (SERM) system. The term is generally traced back to the World Commission on Environment and Development (the Brundtland Commission) report which coined the following definition: 'Sustainable Development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs'.

Sustainable development reporting can help companies to mitigate risk, protect their corporate brands, and gain competitive advantage. (World Business Council for Sustainable Development)

A more current corporate version offered by Lord John Browne, Group Chief Executive of BP in a speech on sustainability, notes:

Our purpose is to supply the goods and services which people want to buy at a cost they can afford. If a business can't meet the needs of its customers it will cease to trade . The business of business is business and sustainability is about achieving enduring commercial success. (6th Annual Peter M. Wege Lecture, University of Michigan, Flint, USA, 14 November 2006)

The need to find new frameworks like a Sustainable Enterprise Risk Management system has been emphasised by Richard Evans, President and Chief Executive Officer of Alcan Inc.:

Sustainability requires new approaches, innovative solutions and stronger partnerships. All of those, when executed and managed well, build value . Sustainability is not a challenge. It is a path - I would argue the only path - to a successful future. (The 2006 Banff Forum, in Mont-Tremblant, Canada, 6 October 2006)

The risk management system also sits well with the frameworks within corporate social responsibility (CSR) frameworks (also known as corporate responsibility (CR), corporate accountability (CA) and corporate citizenship (CS)), which follow a sustainable development style framework, as this quote on the definition of CSR demonstrates:

A company's commitment to operating in an economically, socially and environmentally sustainable manner, while recognising the interests of its stakeholders, including investors, customers, employees, business partners, local communities, the environment and society at large. (Canadian Business for Social Responsibility)

Ensuring business legitimacy and licence to operate are the overreaching aims of the wider business community. To ensure this, there are concepts of: non-financial performance measurement; corporate social responsibility (CSR) also known as corporate responsibility and corporate accountability; sustainability; and business durability. Some prominent business organisations are also promoting these concepts. The Confederation of British Industry (CBI) has proclaimed:

It is a prime responsibility of managements to ensure that companies are good corporate citizens, caring not just for those with a direct stake in business -- shareholders, employees, customers, suppliers -- but for the general public and the environment, in the broadest sense of the term. Social responsibility encompasses many different aspects of business life. It means putting customers first, and providing them with good, safe and reliable products and services. It means being a first class employer, providing fair pay, good conditions and decent pensions for employees. It involves genuine concern for health and safety, and a commitment to good employee involvement and communications.

When a Firing May Be Illegal

2009-06-09T01:50:00.000-07:00

There are a few important exceptions to the employment at will doctrine—and some additional legal theories about unfair treatment on the job—that may make it possible for employees to hang onto their jobs or to sue their former employer for wrongful termination. And, as anxieties deepen over job security, more employees are taking the time and effort to contradict their employers’ assertions that it is time for them to go—and more workers seem willing to do battle in court over unfair treatment.

1. Written Promises

If you have a written employment contract setting out the terms of your work, pay, and benefits, you may be able to get it enforced against an employer who ignores any one of its provisions.

A legal contract—covering employment or anything else—is created when three things occur:

An offer is made by one person to another.
That offer is accepted.
Something of value is exchanged based on the agreement.

You have the best chance of arguing that you are not an employee at will (and, therefore, that you are entitled to keep your job) if there is a strong written statement signifying that you are excepted from the employment at will doctrine.

For example, most collective bargaining agreements (contracts that set out union members’ rights) state that union members can be fired only “for good cause.” So, while union members are still technically employees at will, their agreements often make them exceptions to the general rule, requiring employers to have a specific, legally valid reason before firing them.

And some employees negotiate and sign detailed contracts with their employers—contracts which set out the specific terms of their employment, including salary, relocation rights, and beginning and ending dates of work. Employment contracts have become more rare since the rise and fall of the dotcom companies—and are now usually reserved for the uppermost company executives and other notables such as professional athletes. Those holding employment contracts are usually not subject to the employment at will doctrine; their contracts spell out the length of their employment and specifically note when and how the employment relationship can end.

2. Implied Promises

Claiming that you and your employer have an implied contract is one more way employees can chip away at the doctrine of employment at will. But the chipping won’t be easy. An implied contract assumes that words and things of value exchanged between a former employer and employee created a legal contract governing their relationship.

Until legal challenges to employee dismissals began to be filed with fervor in the early 1980s, many employers used terms such as “permanent employment” in their employee manuals, on job application forms, or orally when offering a position to a prospective employee. Today, employees who challenge their firings sometimes argue that, when an employer referred to permanent employment in the hiring process, that created an implied contract between them. They claim that this implied contract means that the company can only fire them for just cause, such as bad behavior on the job. An employer who fires for less than that, the theory goes, has breached the implied contract.

In addition to making the foolhardy promise of permanent employment, employee handbooks may also offer other fertile grounds for exceptions to employment at will.

A few courts have held, for example, that where company manuals state that employees must be given specific forms of progressive discipline before being fired, employers must deliver on those promises. However, most savvy businesses these days are well acquainted with this legal loophole, so few of them now include such promises in their employee manuals.

And courts have become more circumspect about when they will find an implied employment contract in an employee manual, most opining that the manuals must be very specific and detailed—more than general statements of policy—to constitute a contract.

Outside of employee manuals, courts have also found implied contract exceptions to employment at will where employers overtly agree to continue employment for a specific time period. And, less commonly, such implied contracts have also been found where employers offer persuasive job negotiations along with letters of reassurance or job offers promising stability.

In determining whether you have a binding implied employment contract with a former employer, courts will look at a number of factors that might have led you to believe your employment was rooted in solid ground, including:

the duration of your employment
whether you have received regular promotions
whether you have consistently received positive performance reviews
whether you were assured that you would have continuing employment
whether your employer violated a usual employment practice in firing you—such as neglecting to give a required warning, or
whether promises of permanence were made when you were hired.

3. Breaches of Good Faith and Fair Dealing

While it is an uphill battle to prove that a written or implied promise tantamount to a contract ever existed, it’s even tougher to prove that one has been violated. And, barring discrimination or some other egregious wrongdoing in the process, your best hope of fighting a firing may be to claim that your former employer breached what is referred to as a duty of good faith and fair dealing.

Courts have held that employers have committed breaches of good faith and fair dealing by:

firing or transferring employees to prevent them from collecting sales commissions
misleading employees about their chances for future promotions and wage increases
fabricating reasons for firing an employee on the basis of on-the-job performance when the real motivation is to replace that employee with someone who will work for lower pay
soft-pedaling the bad aspects of a particular job, such as the need to travel through dangerous neighborhoods late at night, and
repeatedly transferring an employee to remote, dangerous, or otherwise undesirable assignments to coerce him or her into quitting without collecting the severance pay and other benefits that would otherwise be due.

While their rulings may be subject to change, some courts do not appear to recognize this exception to at-will employment at all. And some states allow employees to sue for breach of good faith and fair dealing only if they have a valid employment contract.

4. Violations of Public Policy

The employment at will doctrine won’t protect an employer from a wrongful discharge claim if a worker is fired for complaining about illegal conduct or a wrong an employer committed, such as failing to pay workers a minimum wage or overtime pay when it is required. Indeed, it is illegal to violate public policy when firing a worker—that is, to fire for a reason that harms not only the fired worker, but also the interests of the public in general.

Figuring out whether a court would decide that a particular firing fits into this category can, of course, be an exasperating exercise. Before allowing an action for a violation of public policy, most courts strictly require that there be some specific law setting out the policy. Many state and federal laws oblige and take some of the guesswork out of this issue by specifying employment-related actions that clearly violate public policy, such as firing an employee for:

disclosing a company practice of refusing to pay employees their earned commissions and accrued vacation pay
taking time off work to serve on a jury
taking time off work to vote
serving in the military or National Guard , or
notifying authorities about some wrongdoing harmful to the public—generally known as whistleblowing

In addition, a number of state laws protect employees from being fired for asserting a number of more arcane rights—including serving as an election officer, serving as a volunteer firefighter, having certain political opinions, appearing as a witness in a criminal case, or even being elected to the general assembly. Many of these laws, passed as knee-jerk reactions to assuage particular workplace disputes, have become all but dead letters. Few people know they exist. And very few workers attempt to claim their protections. Still, if you feel that your firing may have violated one of these prohibitions, double check the laws in your state.

Courts have also held that it violates public policy for an employer to fire you because you took advantage of some legal remedies or exercised a legal right. And some states will not recognize this exception unless there is a specific statute conferring a particular right. For example, it is illegal for your employer to fire you because you:

file a workers’ compensation claim
file a complaint under the Fair Labor Standards Act
report a violation of the Occupational Safety and Health Act or state safety law
claim your rights under Title VII of the Civil Rights Act
exercise your right to belong or not to belong to a union
exercise your right to take a leave from work that was available under state or federal law
refuse to take a lie detector test
refuse to take a drug test given without good reason or
have your pay subject to an order for child support or a wage garnishment order

In a few states—such as Arizona—this exception is nearly sacrosanct. Whenever a terminated employee’s wrongful termination claim raises an important public policy interest, the employer may well have violated that policy by firing the worker. For example, an Arizona appellate court recently found that a former employee might have been fired as a scapegoat after complaining about possible violations of his employer’s internal antitrust policy. (Murcott v. Best Western International, 9 P.3d 1088 (2000).)

5. Retaliation

Various types of laws—notably, those protecting whistleblowing and prohibiting discrimination —specifically forbid employers from retaliating against employees who avail themselves of legal protections. But a lawsuit alleging retaliation need not always be pegged to a specific statute. An increasing number of cases are now based on the time-tested ban against getting even, legally known as retaliation.

The broad claim of retaliation is a little more complicated, but somewhat easier to prove, than a charge of workplace discrimination. The reason is that evidence supporting retaliation claims is usually less subjective, more obvious than for cases of discrimination. To make out a case of retaliation, you must prove all of the following:

You were engaged in a legally protected activity—such as filing a complaint with the Equal Employment Opportunity Commission or formally complaining to your own company officials about harassment or discrimination.
Your employer then took adverse action against you—by firing you, denying you a promotion, giving an unwarranted bad work performance review, increasing job duties or responsibilities, scrutinizing your work very closely or giving an inaccurate poor reference.
Your actions were the cause of your employer’s actions—for example, you were demoted just after your employer found out that you filed a charge of sexual harassment.

The employer or former employer is then free to show that there was some legitimate reason—other than retaliation—for its actions. If such evidence is presented, you get one more shot at winning by showing that the employer would not have acted—that is, fired or demoted you—if you had not acted first. This last is a tad tricky. In seeing whether this link exists, courts are most likely to look at:

who made the job decision against you—he or she must have known about the action you took
your prior work record—especially important if you were fired, demoted, or given poor job performance evaluations following your action, and
the timing of the employment decision—the shorter the time between them, the more likely a court is to find that they are related.

6. Fraud

In extreme cases, an employer’s actions are so devious and wrong-hearted that they constitute fraud. Fraud can be found at various stages of an employment relationship—most commonly in the recruiting process, where promises are made and broken, or in the final stages, such as when an employee is induced to resign.

By dint of its devious nature, fraud is tough to track and expose—and harder still to prove in court. To win, you must show all of the following:

The employer made a false representation.
Someone in charge knew of the false representation.
Your employer intended to deceive you or induce you to rely on the representation.
You relied on the representation as the truth.
You were harmed in some way by your reliance.

The hardest part of proving fraud is connecting the dots to show that the employer acted badly on purpose, in an intentional effort to trick you. That requires good documentation of how, when, to whom, and by what means the false representations were made. If your employer is a large corporation, the task of collecting and proving this information is all the more difficult, since you must usually work through layers of bureaucracy and many individuals. You must be able to name the people who made the fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and why you relied on it.

If you are sufficiently lucky and resourceful to present this cogent puzzle after your employer defrauds you, you may be entitled to reimbursement for a surprising array of costs, including the costs of uprooting your family to take the job and the loss of income and security that resulted from leaving your former employer.

The Doctrine of Employment at Will | Losing or Leaving a Job

2009-06-07T01:47:00.000-07:00

Once again, for the value of its shock: People employed in private industry have no automatic legal right to their jobs.

That is because of the long-established legal doctrine of employment at will—a term you are most likely to hear cited by your boss or your company’s lawyers if you speak up and protest your dismissal. An employer’s right to unilaterally determine whether or not you should stay on the payroll stems from a 1894 case (Payne v. Western & Atlantic RR, 81 Tenn. 507), in which the court ruled that employers do not need a reason to fire employees; they may fire any or all of their workers at will—that is, at any time and for any reason that is not illegal. Even if the reason for dismissal is morally wrong, the court held, no legal wrong has occurred and the government has no basis to intervene.

The management of America’s factories was still in the experimental stage in the 1890s when that case was decided. The business community successfully argued then, and in cases that followed, that factories could not be operated profitably unless employers were free to hire and fire as they chose. The employment at will doctrine has been reinforced over and over again by subsequent court rulings—and expanded to include not only factories but also virtually all other types of private industry jobs.

But the doctrine has been weakened a bit since the 1970s by rulings in wrongful discharge suits in which former employees question the legality of their firings and by some new laws that are more favorable to employees. For example, in Montana, employees who have completed a probationary period can only be fired for good cause. (Mont. Code Ann. § 39-2-904.) And a federal law, the Uniformed Services Employment and Reemployment Rights Act, or USERRA, protects those who have served in the uniformed services from being fired for any reason but good cause up to a year after they return to the job. And some states have made it illegal to fire employees for taking time off to care for a sick child or because they are gay or lesbian.

Taking Steps to End Sexual Harassment

2009-06-04T05:57:00.000-07:00

The alternatives described here can be viewed as a series of escalating steps you can take to stop sexual harassment. If a particular tactic does not end the objectionable behavior, you can switch to increasingly formal strategies until you find one that is effective.

1. Confront the Harasser
Often the best strategy for the employee sounds the simplest: Confront the harasser and tell him or her to stop. This is not appropriate or sensible in every case, particularly when you have suffered injuries or are in some physical danger. But surprisingly often—most workplace experts say up to 90% of the time—it works.

Confronted directly, harassment is especially likely to end if it is at a fairly low level: off-color jokes, inappropriate comments about appearance, repeated requests for dates, sexist cartoons tacked onto the office refrigerator. Clearly saying no does more than assert your determination to stop the behavior. It makes clear that you find the behavior unwelcome—a critical part of the definition of sexual harassment. It is also a crucial first step if you later decide to take more formal action against the harassment.

Tell the harasser to stop. It is best to deal directly with the harassment when it occurs. But, if your harasser surprised you with an obnoxious gesture or comment that caught you completely off guard—a common tactic—you may have been too flabbergasted to respond at once. Or, if you did respond, you may not have expressed yourself clearly. Either way, talk to the harasser the next day.

Here are some tips for telling the harasser to back off:

Keep the conversation brief. Try to speak privately, out of the hearing range of supervisors and coworkers.
Do not use humor to make your point. Joking may be too easily misunderstood—or interpreted as a sign that you don’t take the situation seriously yourself.
Be direct. It is usually better to make a direct request that a specific kind of behavior stop than to tell your harasser how you feel. For example, saying “I am uncomfortable with this” may be enough to get the point across to some people, but the subtlety may be lost on others. And, of course, making you uncomfortable may be just the effect the harasser was after.
Offer no excuses. Keep in mind that you’re not the one whose behavior is inexcusable. Simply make the point and end the conversation. There is no need to offer excuses, such as: “My boyfriend wouldn’t like it if we met at your apartment to discuss that new project.”

Put it in writing. If your harasser persists, write a letter spelling out the behavior you object to and why. Also specify what you want to happen next. If you feel the situation is serious or bound to escalate, make clear that you will take action against the harassment if it does not stop at once. If your company has a written policy against harassment, attach a copy of it to your letter.

Caution Beware of retaliation. Do not overlook the possibility that some company witnesses may be blackmailed with the threat—soften unspoken—that they will lose their jobs or be demoted if they cooperate with you in documenting or investigating a sexual harassment complaint. While retaliation is illegal, it is difficult to prove. If possible, try to document the harassment by talking with witnesses both inside and outside the company.

2. Use a Company Complaint Procedure
A court sometimes requires a company to write a comprehensive policy if it finds there has been a problem with sexual harassment. Many businesses are also adopting sexual harassment policies on their own, to foster a better atmosphere for employees.

If you are harassed at work, a sexual harassment policy can help you determine what behavior you can take action against and how to ensure the harassment is stopped.

And, in fact, it is essential for you to heed these policies. The U.S. Supreme Court has recently ruled in a number of cases that employees can no longer be coy: If a workplace has a policy or a complaint procedure in place, workers must follow it to complain about or take other action against the bad behavior. Workers who don’t take advantage of company procedures for complaining about harassment may lose the legal right to sue the employer.

Find out whether your employer has a sexual harassment policy by contacting the human resources department or the person who handles employee benefits. If there is no policy, lobby to get one.

3. File a Complaint With a Government Agency
If the sexual harassment does not end after face-to-face meetings or after using the company complaint procedure, consider filing a complaint under the U.S. Civil Rights Act with the U.S. Equal Employment Opportunities Commission (EEOC) (see Chapter 7, Section A) or filing a complaint under a similar state law with a state Fair Employment Practices (FEP) agency. (See Section C, above.)

Filing a complaint with these agencies does two important things:

It sets in motion an investigation by the EEOC or the state FEP agency that may resolve the sexual harassment complaint.
It is a necessary prerequisite under the U.S. Civil Rights Act and under some state FEP laws if you want to file a lawsuit under the Civil Rights Act or under a state FEP law.

Sometimes the EEOC or a state FEP agency can resolve a sexual harassment dispute at no cost to the employee and with relatively little legal involvement. Almost all of these agencies provide some sort of conciliation service—a negotiation between the employer and employee to end the harassment and restore peace in the workplace. And most agencies protect the employee against retaliation for filing the complaint. Most agencies have the power to expand their investigation to cover more widespread sexual harassment within the company. A few state FEP agencies also provide an administrative hearing panel that can award money to compensate a harassed employee for personal injuries, although the EEOC and most state agencies do not have this important power.

The EEOC and state FEP agencies can resolve a lot of cases, but not all of them. Investigations sometimes drag on longer than the harassed employee is prepared to wait. Not all cases will yield to the conciliation efforts of such agencies; this is particularly true in severe cases of sexual harassment with significant personal injuries.

4. File a Private Lawsuit
If investigation and conciliation by the EEOC or a state FEP agency does not produce satisfactory results, your next step may be to file a lawsuit under the U.S. Civil Rights Act or under one of the state FEP statutes.

Even if you intend right from the beginning to file such a lawsuit, you generally must first file a claim with a government agency, as described above. An employee must file a claim with the EEOC before bringing a lawsuit under the U.S. Civil Rights Act. Some states also require that the employee first file a claim with the state FEP agency before suing under state law. At some point after such claims are filed and investigated, the agency will issue you a document—usually referred to as a right-to-sue letter—that allows you to take your case to court. Going to court in such lawsuits requires getting legal advice from an attorney who is experienced in these types of cases.

Generally speaking, suing under the U.S. Civil Rights Act is potentially more lucrative than relying on state law. Most state FEP laws allow you to win lost wages and benefits, but not compensation for physical and mental injuries such as stress and anxiety caused by the harassment. By contrast, the Civil Rights Act allows the employee to recover some money—out-of-pocket losses plus $50,000 to $300,000, depending upon the number of employees in the company. Its coverage, however, is limited to employers with 15 or more employees.

However, some states, such as New York and California, do better. They allow an employee to be compensated up to the full amount of damages proven, without any artificial limits. Employees in those states will probably want to pursue their rights under state law or maybe a combination of state and federal law.

5. File a Tort Lawsuit
Bringing a tort action (that is, a lawsuit for personal injuries) is often the last legal resort for sexually harassed workers. These legal actions provide a wider range of possible remedies than those available under the Civil Rights Act. You can sue both for compensatory damages for the emotional and physical distress you suffered because of the workplace harassment, and for potentially large punitive damages aimed at punishing the wrongdoer.

These lawsuits, which will usually require help from a lawyer, are based on traditional legal theories such as assault and battery, intentional infliction of emotional distress, interference with contract, and defamation. These actions, called torts, are civil wrongs—and are filed in state courts like any other lawsuit based on a personal injury.

At least in theory, tort actions allow unlimited dollar verdicts for some of the most severe injuries wrought by harassment: emotional and physical harm. These tort actions are particularly appropriate where a worker has suffered severe trauma from the psychological remnants of harassment—embarrassment, fright, or humiliation—which can cause a permanent loss of self-esteem and take a heavy toll on emotional and physical health.

While a tort lawsuit may be the best option for some harassed workers, it is the only possible remedy for others. As mentioned, if your employer has 14 or fewer employees, you are not covered by the U.S. Civil Rights Act and cannot file an EEOC complaint or a federal lawsuit for money.

The Effects of Sexual Harassment

2009-06-02T03:56:00.001-07:00

Sexual harassment on the job can have a number of serious consequences, both for the harassed individual and for other workers who experience it secondhand and become demoralized or intimidated at work.

1. Loss of Job

Sometimes the connection between sexual harassment and the injuries it causes is simple and direct: A worker is fired for refusing to go along with the sexual demands of a coworker or supervisor. Usually the management uses some other pretext for the firing, but the reasons are often quite transparent.

Sometimes the firing technically occurs because of some other event, but it is still clearly related to sexual harassment. For example, if a company downgrades an employee’s job and assignments because of a harassment incident and then fires him or her for complaining about the demotion, that injury is legally caused by sexual harassment.

If an employee is temporarily unable to work as a result of the harassment and the management uses that as an excuse to fire him or her, that is also considered legally related to the harassment.

2. Loss of Wages and Other Benefits

An employee who resists sexual advances or objects to obscene humor in the office may suffer work-related consequences including:

being denied a promotion
being demoted, or
suffering various economic losses.

That employee may also suffer harm to his or her standing within the company, which could jeopardize future pay increases and opportunities for promotion.

A loss of wages usually entails a loss of other job benefits as well, such as pension contributions, medical benefits, overtime pay, bonuses, sick pay, shift differential pay, vacation pay, and participation in any company profit-sharing plan.

3. Forced Reassignment

Sometimes a company responds to an employee’s complaint of sexual harassment by transferring that individual somewhere else in the company and leaving the harasser unpunished. This forced reassignment is another form of job-connected injury, and it may be compounded if it results in a loss of pay or benefits or reduced opportunities for advancement.

4. Constructive Discharge

Sometimes the sexual harassment is so severe that the employee quits. If the situation was intolerable and the employee was justified in quitting, sexual harassment caused him or her to be constructively discharged—that is, forced to leave. While often difficult to prove, courts treat this as an illegal firing.

5. Penalties for Retaliation

Employees are frequently fired or penalized for reporting sexual harassment or otherwise trying to stop it. Such workplace reprimands are called retaliation. In such cases, the injury is legally considered to be a direct result of the sexual harassment.

6. Personal Injuries

In addition to job-connected losses, a sexually harassed worker often suffers serious and costly personal injuries—ranging from stress-related illnesses to serious physical and emotional problems.

Sexual harassment also causes a great many other types of physical, mental, and emotional injuries. Some of these injuries are stress-related, but others are caused by physical pranks or violent acts directed at the harassed worker.

State and Local Health and Safety Laws

2009-05-16T04:54:00.000-07:00

Many states and municipalities have laws that mandate a certain level of safety in the workplace. These laws vary greatly in what they require, how they are enforced, and even which employers they cover.

Early on, California began enforcing the most powerful of these laws: It requires every employer in the state to have a written plan to prevent workplace injuries. A number of states have followed the lead, putting teeth and nails into the laws that protect workplace safety. For example, Texas maintains a 24-hour hotline for telephone reports of violations—and prohibits employers from discriminating against workers who drop a dime to use it.

1. State OSHA Laws

Most states now have their own OSHA laws—most with protections for workers that are similar to those provided in the federal law. For example, employers in some low-hazard industries, such as retailers and insurance companies with fewer than ten employees, are exempt from some posting and reporting requirements. Most state laws cover all small employers, regardless of the type of business.

A number of states that do not now have OSHA laws in place are presently considering passing them—and many of the states that already have such laws are considering wholesale amendments changing their coverage and content. Check your state’s particulars with a local OSHA office—or call the state department of labor to check whether your state has enacted an OSHA law recently.

A number of state laws specifically forbid employers from firing employees who assert their rights under workplace health and safety rules. Some states, like OSHA, give workers the right to refuse to work under certain conditions, although the workers may need to report the condition first. And some states protect workers from retaliation not only for exercising their rights under OSHA, but also for using state “right to know” laws—statutes that require employers to give workers information about hazardous substances on the job.

Still another group of state laws extends beyond the workplace to protect employees who report violations of laws and rules that create specific dangers to public health and safety. These laws, commonly referred to as whistleblower statutes, generally protect good eggs—individuals who are attempting to uphold a public policy of the state. For example, typical whistleblower statutes prohibit employees from being fired for reporting toxic dumping or fraudulent use of government funds.

The Knock That Never Comes
If you happen upon an OSHA official who is feeling chatty and loose-tongued, you may hear what we all suspected: There simply are not enough inspectors to go around inspecting. Perhaps the jobs are hard to fill—OSHA inspectors nestle among IRS auditors on most employers’ lists of unwelcome visitors.

Restricted budgets may be a problem, too—the agency has been forced to set staff levels low and keep them there.

All this makes for lax enforcement. For example, there are only about 250 inspectors on the California OSHA staff available to monitor businesses and dole out citations for failing to comply with the state’s comprehensive law requiring health and safety plans for every employer in the state.

And California is a big state. Chamber of Commerce officials there recently estimated that if all the inspectors started at the state’s Oregon border and worked their way south through every business, it would take at least 300 years to reach Mexico.

2. Sanitation Laws

Many state and local health and building codes offer guidance in how to keep your workplace safe. While not intended specifically to ensure workplace safety, these laws often include programs designed to ensure good sanitation and public safety in general.

For example, the health department of the city in which you work probably has the power to order an employer to improve restroom facilities that are leaking and causing unsanitary workplace conditions. And your local building inspector typically can order an employer to straighten out faulty electrical wiring that presents a shock or fire hazard to people working near that wiring.

When the Boss Doubles as a Bathroom Monitor
It wasn’t big news to many when government health authorities recently slapped a $332,500 fine on Hudson Foods, a poultry processing plant in the town of Noel, Missouri. The plant had been inspected by the Occupational Safety and Health Administration (OSHA) 23 times in 24 years—a healthy number for an agency notoriously backlogged and selective in carrying out its charge of ferreting out workplace health and safety violations.

A number of news sources dutifully recounted the parade of transgressions OSHA inspectors had noted: blocked and restricted fire exits, failure to provide training in and enforce use of eye protective equipment, failure to provide training and issue procedures for handling hazardous chemicals, failure to securely anchor machines.

Less widely reported was one innocuous sounding violation: Insufficient Toilet Facilities. The charge drew at least a few glib jibes: “Let My People Go,” trumpeted one legal journal in a headline thumbnailing the inspection.

But few could fathom the human humiliation behind it all. Hudson workers claim they were required to ask permission before being allowed bathroom breaks—and that permission was denied as often as granted. Some say they were forced to urinate in their clothes or wear diapers to absorb the inevitable. Thom Hanson, chief regulatory compliance officer at Hudson, defended the company’s position: The workers simply “need to ask supervisors to release them,” he explained. “Normally, a relief person comes by and takes their place.”

But relief was not always in sight, according to one woman who worked five years as a packer at Hudson. “It matters how good you get along with your supervisor. Sometimes they’ll say no,” she said. “And it’s pretty hard to leave the line when you’ve got thousands of chickens coming at you.”

OSHA regulations have long required that employers provide toilets in the workplace: at least six for the first 150 workers, and one more for each additional 40 workers. But in a twist of semantics defying logic, the regulations mandate only the presence of toilets on the scene—not employees’ rights to use them. In considering the Hudson complaints, OSHA officials found for the first time that the company in effect denied workers toilet facilities when it denied them the right to use them.

In the wake of the Hudson case and the ensuing public outcry, OSHA officials dictated at last that employers must give workers prompt and reasonable access to toilet facilities, even though the regulations do not specifically require it.

An official Standards and Compliance Letter issued by OSHA noted: “Toilets that employees are not allowed to use for extended periods cannot be said to be ‘available’ to those employees.”

In other words, employers can no longer hide behind the lacking letter of the law. Employers who do not allow employees reasonable access to workplace toilets may now be cited and sanctioned by OSHA inspectors.

You can find state and local health and building codes at your city hall or county courthouse.

Conduct Codes | Privacy Rights

2009-05-13T07:42:00.000-07:00

Some employers have fashioned comprehensive behavior codes for their employees, setting out the bounds of workplace behavior they consider Professional. The dictate that gets caught in many workers’ craws is the prohibition against dating others in the workplace, sometimes quaintly referred to as fraternizing. Others go a step farther and prohibit married couples from working in the same place.

Such attempted controls over workers’ personal relationships fly in the face of reality. Workplace experts claim that as many as 70% of all male and female workers have either dated or married someone they met at work. Those are far better odds than you have of meeting someone at a bar, party, or other social gathering specifically engineered to be a meeting place.

But courts have been painfully slow to recognize the social reality of today’s workplaces. During the last decade, employees have been fired for having extramarital affairs, for attending out-of-town conventions with someone other than a spouse, and for dating and marrying coworkers. There are no clear guidelines but an appeal to common sense. Where that fails, and an employer’s demands truly seem unreasonable, there may be no alternative but to sue.

1. Policies Against Marrying

Some employers think that nepotism—hiring an employee’s spouse or other relative—is an efficient way to recruit new workers and to keep them happy by surrounding them with loved ones. But others adamantly refuse to allow two spouses to be part of their workforce. They reason that married couples will be inconvenient at best, insisting on the same time off for vacations and holidays. At worst, they claim that being married will make workers less stable. For example, some police departments have argued that married troopers would not react objectively if a spouse got injured on the job—or that their credibility would be undermined if called to testify to support one another’s actions.

No Paint, No Powder, No Job
Darlene Jespersen toiled for nearly 20 years as a bartender at the sports bar in Harrah’s Casino in Reno. Along the way, she garnered rave performance reviews from her supervisors, along with a stack of customer feedback forms praising her excellent service and good attitude.

Then Harrah’s served up something new—a Beverage Department Image Transformation Program with new appearance standards for employees, called “Personal Best.” It required all women who work in the beverage department to wear makeup—foundation or powder, blush, lipstick, and mascara applied neatly in complimentary colors”; stockings; colored nail polish; hair “teased, curled, or styled every day” and “worn down at all times, no exceptions.”

Men, on the other hand, were simply forbidden by the policy from wearing any makeup of any kind and required to maintain trimmed hair and fingernails.

Jespersen claimed that making up was not her style—and protested that it made her feel “dolled up” like a sexual object and undermined her ability to deal with drunk or rowdy customers on the job. After gamely trying to follow the Personal best guidelines for a while, she stopped—and was fired.

Jespersen filed a federal lawsuit accusing Harrah’s of sex discrimination. But an allmale panel held against her, opining that that there was no proof that Harrah’s Personal Best policy imposed unequal burdens on men and women workers.

Jespersen v. Harrah’s Operating Co., Inc., 392 F. 3d 1076 (2004).

Some such policies, however, may be on shaky legal ground. Nearly half the states explicitly prohibit public and private employers from discriminating based on marital status.

But whether or not your state prohibits marital status discrimination, the legality of no-spouse employment rules is still unclear. Courts called upon to decide the issue have been contradictory. Some have found that there is no business justification for preventing coworkers from marrying or working together. Other courts stick stridently to the letter of workplace policies, reasoning that employees are legally free to ban married workers on their premises.

2. Policies Against Dating

Where the issue is prohibiting employees from dating rather than marrying, the law is even less clear. Few of the policies banning workers from dating have been challenged in court—most likely because the love-struck workers were surreptitious about their strickenness, or they got annoyed enough to get jobs elsewhere, or their love took a back seat to the stress of a court battle, ending the relationship.

To many, policies prohibiting coworkers from dating seem paternalistic and fly in the face of a cardinal law of human nature: Proximity Often Breeds Attraction. Those with the gumption to challenge such policies might base a legal claim on their right to privacy, freedom of association, wrongful discharge—or, if the policies are enforced disproportionately against workers of a particular age, gender, or race, they may claim a violation of civil rights.

A number of employers have adopted strict policies prohibiting supervisors from dating people they supervise, although, these days, a growing number give the supervisor the option of being transferred rather than fired on the spot. While these strong antidating policies may be understandable given the relatively low legal threshold for a supervisor’s conduct to be considered sexual harassment, they may be just as impossible to enforce.

Consider the practical difficulty, for example, in determining exactly when two people have crossed the line between friendly and involved. Strict policies prohibiting liaisons between bosses and worker bees also seem to encourage a double standard of behavior within the ranks of employees. Far better to remember that since workplace harassment is almost always about an abuse of power—not about romance gone sour—the focus should be on preventing intimidation.

Violence in the Workplace

2009-05-11T06:02:00.000-07:00

The numbers and pronouncements about our chances of being attacked or killed while at work are scary.

Homicide reigns as the leading cause of workplace death among women. In fact, the National Institute for Occupational Safety and Health lists homicide as a leading cause of all work-related deaths in the United States, second only to motor vehicle crashes. More than 800 people are kill annually in American workplaces. And an estimated one million workers suffer nonfatal assaults on the job each year. The U.S. Postal Service alone reported 500 cases of employees being violent toward supervisors in a recent period of 18 months—and an additional 200 cases of supervisors acting violently toward employees. And frightening results of a recent study claim that an employee in California is more likely to be murdered at work than to die in a car accident commuting to or from work.

Part of what makes violent behavior difficult to control is that it usually comes unannounced. But most workplace killers are disgruntled former employees who have been laid off or fired or the obsessed spouse or lover of an employee. And those who kill at work, experts say, usually give off warning signals that typically include:

following or stalking an employee to or from the place of work
entering the workplace
following an employee at work, and
telephoning or sending correspondence to the employee.

Coworkers describe many individuals who have committed violence in the workplace as: loners, not team players, having a history of interpersonal conflict and displays of anger, having made threats of violence in the past, being withdrawn, showing symptoms of current drug or alcohol abuse, being argumentative and quick to blame others for their own problems and frustrations.

Both employers and employees may be able to help ward off violence by heeding these signals of disturbed souls and taking immediate action. As an employee, you should report threatening coworkers. And encourage your employer to both refer such problem coworkers to a ready source of help and tell them, in no uncertain terms, that they will be fired if their bad behavior continues.

1. Legal Developments

Realistically, employers who try to ward off violence often get caught in the conundrum of balancing employees’ safety against the rights of the potential perpetrator. On one hand, employers are charged with keeping the workplace safe. Several have been successfully sued for negligent hiring, negligent supervision, and wrongful death because they kept suspicious employees on staff who ultimately maimed or killed others on the job.

Increasingly, the pressure to act comes from victims of workplace violence and their survivors. And an increasing number of courts find employers directly liable for violence when they turn a deaf ear to workers’ complaints about inadequate security—or a blind eye to knowledge that a worker’s past actions might make him or her likely to attack coworkers and others on the job.

But employers have also felt the sting of lawsuits by employees who claim that overzealous investigations have violated laws protecting them from discrimination or invasions of their privacy.

Of late, scales are tipping in favor of keeping workplaces safe. In one recent case, for example, a Massachusetts court held that an employer, the U.S. Postal Service, was well within its rights when it fired a worker who screamed obscenities, swept the contents off a supervisor’s desk, threw a typewriter and chair, and knocked down several office partitions. The employee defended that he had an explosive personality disorder that entitled him to protection as a disabled employee rather than a pink slip. But the court held that a fundamental requirement of any job is that an employee must not be violent and destructive.

And a Florida court held recently that an employee—even one diagnosed with a chemical imbalance—could be fired on the spot for bringing a loaded gun to work.

2. Practical Prevention Steps

As reports of violence in the workplace have grown, concerned and conscientious employers and employees alike have turned to OSHA for help. While the agency has not set a specific safety standard for workplaces to follow, it has issued two sets of guidelines to help employers identify and prevent situations in workplaces with high potentials for violence: health care and social service industries and late-night retail establishments. The guidelines, which recommend setting up a violence prevention program, include five elements that may be useful for safety plans in all workplaces. If your workplace does not yet have a violence prevention program, the guidelines might serve as a starting point.

Management commitment and employee involvement. All violent and threatening incidents should be taken seriously—and management should develop a plan for workplace security, working with local police and other public safety agencies to improve physical security.
Worksite analysis. This includes identifying risk factors. For example, in retail establishments, risk factors commonly include contact with the public, exchanging money, working alone or in small numbers, and being located in a high crime area. A worksite analysis should also include a review of any past incidents, a security review, and periodic safety audits.
Hazard prevention and control. This includes adequate lighting, possible installation of video surveillance, drop safes, and physical barriers.
Training. All employees, supervisors, and security personnel should be trained to ensure awareness of potential security hazards and procedures for protecting themselves and others in the workplace.
Evaluation. Methods of hazard control and training needs should be evaluated—including record keeping, incident reports, police recommendations, and notes from safety meetings.

When Domestic Violence Comes to Work
In a recent survey of corporate security directors, 94% ranked the threats and battery associated with domestic violence as a high security risk in the workplace. Their feelings are justified. A full 75% of battered employees are harassed at work by their abusers—a spouse, former spouse, or member of the family or household. And, last year, there were 60,000 incidents of on-the-job violence in which those who were attacked knew their attackers intimately.

Beyond its obvious toll on human psyches, domestic violence has a huge impact on workplace productivity. For every 100 employees suffering the effects of domestic violence, 94 will take at least one extra sick day a year, over 60 will be late by more than an hour five times a month, and nearly 60 will be harassed at work on the phone by their abuser. All of this adds up to a situation where 70% of hurting, afraid, distracted, and otherwise compromised workers will have difficulty performing their jobs. And legislatures have been slow to respond to this reality. A rare exception, a California statute, provides that employers with 25 employees or more must offer domestic violence leave—reasonable time off to deal with related issues including health, counseling, safety, and housing. (Cal. Lab. Code Sec. 230.)

And a recent study of those subjected to domestic violence found that nearly 30% lost their jobs as a direct result of the abuse. Of all the other high costs associated with domestic violence, some of the most insidious from an employers’ standpoint are heightened health insurance premiums, increased workers’ compensation, and higher unemployment insurance.

The first step toward ending domestic violence is to find out the alternatives and possibilities available. If you or a coworker needs help or information on domestic violence, look in the telephone book under Crisis Intervention for local resources. Or call the National Domestic Violence Hotline for information on nearby shelters, legal help, health care advocacy, and counseling: 800-799-7233 or (TDD) 800-787-3224.

Statistics from DV Initiatives, www.dvinitiative.com, 2005

Pesticide Laws

2009-05-09T08:01:00.000-07:00

Misused and overused pesticides are one of the greatest safety threats to people who work on farms, in other parts of the food industry, and in gardening and lawn care companies, to name just a few. Heavy exposure to some of these chemicals can cause serious health problems and even death. For people with certain types of allergies, even small doses of some pesticides can cause severe illness.

However, as early as 1975, a federal court ruled that the U.S. Environmental Protection Agency (EPA)—not OSHA—is responsible for making sure that workers are not injured by exposure to pesticides at work. (Organized Migrants in Community Action, Inc. v. Brennan, 520 F. 2d 1161.)

There have been some disputes between the EPA and OSHA over this ruling in recent years—and the question of enforcement responsibility remains unsettled decades later. If you believe that you or your coworkers are being exposed to dangerous doses of pesticides at work, the best thing to do is to file complaints with both OSHA and the EPA—and let them decide who gets to regulate you. To find the nearest EPA office, look in the U.S. Government section of the white pages of the telephone book. You can also find a listing of local EPA offices at the agency’s website at www.epa.gov under “About EPA.”

State and Local Health and Safety Laws

2009-05-08T04:54:00.000-07:00

1. State OSHA Laws

The Knock That Never Comes
If you happen upon an OSHA official who is feeling chatty and loose-tongued, you may hear what we all suspected: There simply are not enough inspectors to go around inspecting. Perhaps the jobs are hard to fill—OSHA inspectors nestle among IRS auditors on most employers’ lists of unwelcome visitors.

Restricted budgets may be a problem, too—the agency has been forced to set staff levels low and keep them there.

All this makes for lax enforcement. For example, there are only about 250 inspectors on the California OSHA staff available to monitor businesses and dole out citations for failing to comply with the state’s comprehensive law requiring health and safety plans for every employer in the state.

And California is a big state. Chamber of Commerce officials there recently estimated that if all the inspectors started at the state’s Oregon border and worked their way south through every business, it would take at least 300 years to reach Mexico.

2. Sanitation Laws

When the Boss Doubles as a Bathroom Monitor
It wasn’t big news to many when government health authorities recently slapped a $332,500 fine on Hudson Foods, a poultry processing plant in the town of Noel, Missouri. The plant had been inspected by the Occupational Safety and Health Administration (OSHA) 23 times in 24 years—a healthy number for an agency notoriously backlogged and selective in carrying out its charge of ferreting out workplace health and safety violations.

A number of news sources dutifully recounted the parade of transgressions OSHA inspectors had noted: blocked and restricted fire exits, failure to provide training in and enforce use of eye protective equipment, failure to provide training and issue procedures for handling hazardous chemicals, failure to securely anchor machines.

Less widely reported was one innocuous sounding violation: Insufficient Toilet Facilities. The charge drew at least a few glib jibes: “Let My People Go,” trumpeted one legal journal in a headline thumbnailing the inspection.

But few could fathom the human humiliation behind it all. Hudson workers claim they were required to ask permission before being allowed bathroom breaks—and that permission was denied as often as granted. Some say they were forced to urinate in their clothes or wear diapers to absorb the inevitable. Thom Hanson, chief regulatory compliance officer at Hudson, defended the company’s position: The workers simply “need to ask supervisors to release them,” he explained. “Normally, a relief person comes by and takes their place.”

But relief was not always in sight, according to one woman who worked five years as a packer at Hudson. “It matters how good you get along with your supervisor. Sometimes they’ll say no,” she said. “And it’s pretty hard to leave the line when you’ve got thousands of chickens coming at you.”

OSHA regulations have long required that employers provide toilets in the workplace: at least six for the first 150 workers, and one more for each additional 40 workers. But in a twist of semantics defying logic, the regulations mandate only the presence of toilets on the scene—not employees’ rights to use them. In considering the Hudson complaints, OSHA officials found for the first time that the company in effect denied workers toilet facilities when it denied them the right to use them.

In the wake of the Hudson case and the ensuing public outcry, OSHA officials dictated at last that employers must give workers prompt and reasonable access to toilet facilities, even though the regulations do not specifically require it.

An official Standards and Compliance Letter issued by OSHA noted: “Toilets that employees are not allowed to use for extended periods cannot be said to be ‘available’ to those employees.”

In other words, employers can no longer hide behind the lacking letter of the law. Employers who do not allow employees reasonable access to workplace toilets may now be cited and sanctioned by OSHA inspectors.

You can find state and local health and building codes at your city hall or county courthouse.

Tobacco Smoke in the Workplace

2009-05-06T03:55:00.000-07:00

OSHA rules apply to tobacco smoke only in the most rare and extreme circumstances, such as when contaminants created by a manufacturing process combine with tobacco smoke to create a dangerous workplace air supply that fails OSHA standards. Workplace air quality standards and measurement techniques are so technical that typically only OSHA agents or consultants who specialize in environmental testing are able to determine when the air quality falls below allowable limits. But, when asked to intercede on workplace complaints about tobacco smoke, Environmental Protection Agency (EPA) officials typically hedge that “exposures to the carbon monoxide or other toxic substances in the tobacco smoke rarely exceed current OSHA permissible exposure limits or PELs.” (OSHA Standards Interpretation and Compliance Letter, 10/26/98.)

But the torturous effects of tobacco smoke on human health have been clearly established and even certified by the government. A recent report by the EPA, for example, estimated that secondhand tobacco smoke that emerges from exhaling and burning cigarettes causes approximately 3,000 lung cancer deaths and 37,000 heart disease deaths in nonsmokers each year. So people who smoke cigarettes, cigars, or pipes at work increasingly find themselves to be an unwelcome minority—and many employers already take actions to control when and where smoking is allowed.

Although there is no federal law that directly controls smoking at work, a majority of states protect workers from unwanted smoke in the workplace. In addition, hundreds of city and county ordinances restrict smoking in the workplace, but only a few of these local laws ban it outright.

In contrast, about half the states make it illegal to discriminate against employees or potential employees because they smoke during nonworking hours. And, because it has much encouragement and financial support from the tobacco industry, this smokers’ rights movement appears to be gaining strength.

So the ongoing legal battle boils down to a question of what is more important: one person’s right to preserve health by avoiding coworkers’ tobacco smoke, or another’s right to smoke without the interference of others.

1. Protections for Nonsmokers

The sentiment against smoking in the workplace and any other shared space has grown so strong that many companies now increase their attractiveness to job seekers by mentioning in their Help Wanted advertising that they maintain a smoke-free workplace.

Except in those states that forbid work-related discrimination against smokers or discrimination against employees on the basis of any legal activities outside work, there is nothing to prevent employers from establishing a policy of hiring and employing only nonsmokers.

Clearing the Air in the Workplace
If your health problems are severely aggravated by coworkers’ smoking, there are a number of steps you can take:

Ask your employer for an accommodation. Successful accommodations to smoke-sensitive workers have included installing additional ventilation systems, restricting smoking areas to outside or special rooms, and segregating smokers and nonsmokers.

Example

Carmelita’s sinus problems were made almost unbearable by the smoke created by the people who work with her in an insurance claims processing office. Since her job involves primarily individual work on a computer terminal and no contact with people outside the company, Carmelita convinced her employer to allow her to start her workday at 4 p.m., just an hour before her coworkers leave for home.

When Carmelita needs to discuss something with coworkers or her supervisor, she does so via electronic mail or at occasional one-hour staff meetings that begin at 4 p.m.—and at which smoking is not allowed.

Check local and state laws. As indicated, a growing number of local and state laws prohibit smoking in the workplace. Most of them also set out specific procedures for pursuing complaints. If you are unable to locate local legal prohibitions on smoking, check with a nonsmokers’ rights group.
Consider filing a federal complaint. While OSHA is handling an increasing number of smoking injuries, most claims for injuries caused by secondhand smoke in the workplace are pressed and processed under the Americans With Disabilities Act. In the strongest complaints, workers were able to prove that smoke sensitivity rendered them handicapped in that they were unable to perform a major life activity: breathing freely.
Consider income replacement programs. If you are unable to work out a plan to resolve a serious problem with workplace smoke, you may be forced to leave the workplace. But you may qualify for workers’ compensation or unemployment insurance benefits to provide some benefits while you look for a new job.

While most states now protect workers from unwanted smoke on the job, they follow different approaches. Many states have laws that specifically address smoking in workplaces; they live on the books alongside regulations that apply to other areas. A large number of states have smoking control laws that apply to everyone in public places and specified private places; nonsmoking employees in these states are protected only if they happen to work in a place that is specifically covered by the statute. A few state laws are all-encompassing—limiting or banning smoking in both public places and workplaces.

Where smoking is limited, some states prohibit it except in a designated area within the workplace. Other states take the opposite approach, requiring employers to set aside pristine areas for the nonsmokers in the work crowd.

There are also common exceptions written into antismoking laws. Often, their protections do not apply to:

places where private social functions are typically held, such as rented banquet rooms in hotels; presumably, even the most sensitive nonsmoking employees must brave the smoke when they are guests in these places
private offices occupied exclusively by smokers
inmates at correctional facilities and hospital patients, who usually must comply with the rules of the institution while they are confined, and
employers who can show that it would be financially or physically unreasonable to comply with the legal limitations.

Caution

Additional protection under the ADA. Some workers who are injured by smoke on the job have brought successful claims for their injuries under the Americans With Disabilities Act, which prohibits discrimination against people with disabilities. You are entitled to protection under this law only if you can prove that your ability to breathe is severely limited by tobacco smoke, making you physically disabled.

2. Protections for Smokers

Because of the potentially higher costs of health care insurance, absenteeism, unemployment insurance, and workers’ compensation insurance associated with employees who smoke, some companies now refuse to hire anyone who admits to being a smoker on a job application or in prehiring interviews.

Some states protect both smokers and nonsmokers by insisting that employers provide a smoke-free environment for nonsmokers and by prohibiting discrimination against an employee who smokes—either while off the job or at limited places and times in keeping with a worksite smoking policy.

Protection for smokers may be couched in laws that prohibit discrimination against employees who use “lawful products” outside the workplace before or after workhours. Wisconsin law goes an extra step and forbids employers from discriminating against both workers who use and workers who do not use lawful products.

Several of the state laws that prohibit discrimination against smoking employees do not apply if not smoking is truly a job requirement. In these states it is likely, for example, that a worker in the front office of the American Cancer Society—a group outspoken in its disdain of tobacco—could be fired for lighting up on the job.

And, even in those states that offer some protection to smokers employers, are free to charge smokers higher health insurance premiums than nonsmoking employees must pay.

3. State Laws on Smoking

The chart below summarizes state laws setting out rights and responsibilities for both smokers and nonsmokers. Different rules may apply to workplaces that are also public spaces, such as restaurants, bars, hotels, or casinos; those rules are not covered here. Beware that even if there is no statute regulating smoking in the workplace, there may still be a state administrative regulation or local ordinance that does control. Call your state labor department for more information.

Criminal Actions for OSHA Violations

2009-05-05T07:53:00.000-07:00

As noted, the enforcement arm of OSHA has the power in some situations to pursue criminal prosecutions against employers who fail to maintain a safe workplace, but it rarely does.

However, state prosecutors are increasingly bringing criminal charges such as reckless endangerment and even murder against employers whose behavior seriously endangers workers.

You may want to contact your state’s attorney general about the possibility of criminal action if your work conditions pose a serious threat of injury or death to you or your coworkers and you are not able to resolve your concerns through OSHA or other civil actions.

While employers can be prosecuted for criminal negligence when an employee dies as a result of violations of OSHA regulations, such convictions are rare. In fact, in the first 20 years the law was in effect, only one employer was convicted and sent to jail for such a death. The main reason for this low conviction rate is that, under OSHA, prosecutors must show that an employer’s violation of workplace safety rules was willful—that is, done on purpose—a subjective standard that can be tough to meet

Enforcing OSHA Rights

2009-05-04T05:07:00.000-07:00

If you believe that your workplace is unsafe, your first action should be to make your supervisor at work aware of the danger as soon as possible. If your employer has designated a particular person or department as responsible for workplace safety, inform the appropriate person of the danger.

In general, your complaint will get more attention if you present it on behalf of a group of employees who all see the situation as a safety threat. And, as for filing a complaint, there is safety in numbers. An employer who becomes angry over a safety complaint is much less likely to retaliate against a group of employees than against an individual.

This Law Swings Both Ways
Although neither federal nor state OSHA laws cite employees for violations of their responsibilities, the laws generally require that workers comply with all standards, rules, regulations, and orders issued under the Act. The unspoken inference here is that workers who do not hold up their end of the safety law bargain may jeopardize their own protections under health and safety laws.

Specifically, according to OSHA, an employee should:

read the OSHA poster at the job site

comply with all applicable OSHA standards.

follow all employer safety and health regulations and wear or use prescribed protective equipment while working

report hazardous conditions to the supervisor

report any job-related injury or illness to the employer and seek treatment promptly

cooperate with the OSHA compliance officer conducting an inspection if he or she inquires about safety and health conditions in the workplace, and

exercise rights under the Act in a responsible manner.

While some of these responsibilities sound a bit nebulous, you should be prepared to show that you did your best to carry them out before claiming protection under any OSHA law.

1. Filing a Complaint

If you have not been successful in getting your company to correct a workplace safety hazard, you can file a complaint at the nearest OSHA office. Look under the U.S. Labor Department in the federal government section of your local telephone directory or find them on the agency’s website at www.osha.gov under About OSHA.

You can request the proper complaint forms from any OSHA office. You also have the option of telephoning your complaint to your nearest OSHA office, where a compliance officer will complete the paperwork and then send you the completed version for your approval and signature. For more information about filing a complaint and to file one online, go to OSHA’s Workers’ Page at www.osha.gov/as/opa/worker/index.html.

If you request it, OSHA must keep confidential your identity and that of any other employees involved in the complaint. If you want your identity to be kept secret, be sure to check the section on the complaint form that states: “Do not reveal my name to the employer.”

Once you have completed the complaint form, file it with the nearest OSHA office. You can do this in person, but if you send it in by certified mail, you will have proof that OSHA received it should it get mislaid in OSHA’s offices. Keep a photocopy of your completed complaint form for your own files.

Upon receiving your complaint, OSHA will assign a compliance officer to investigate your case. The compliance officer will likely talk with you and your employer and inspect the work conditions that you have reported.

Caution

Time off under the FMLA. If your workplace injury requires an extended recovery at home or in a hospital, state and federal leave laws may not only protect your right to take time off work but require that you be returned to your former position with continued insurance benefits.

2. How Complaints Are Resolved

A compliance officer who finds that the condition about which you complained poses an immediate danger to you and your coworkers can order your employer to immediately remove the danger from the workplace—or order the workers to leave the dangerous environment.

Where the danger is particularly urgent or the employer has a record of violations, OSHA may get tough by asking the courts to issue an injunction—a court order requiring the employer to eliminate workplace hazards.

Example

A group of pipeline workers complained to OSHA that the earth walls of the excavation in which they were working were not well supported and could collapse on them. The OSHA compliance officer tried unsuccessfully to talk the employer into improving the situation. OSHA obtained a court injunction forbidding work to continue within the excavation until the walls were shored up with steel supports.

If the danger is less immediate, the compliance officer will file a formal report on your complaint with the director of OSHA for your region. If the facts gathered by the compliance officer support your complaint, the regional director may issue a citation to your employer.

The citation will specify what work conditions must be changed to ensure the safety of the employees, the timetable that OSHA is allowing for those changes to be made—usually known as an abatement plan—and any fines that have been levied against your employer.

Example

Leslie is a machine operator in an old woodworking shop that uses lathes that throw a large quantity of wood dust into the air inside the shop. The wood dust appeared to be a hazard to the employees who breathe it, and Leslie was unsuccessful in resolving the problem with the shop’s owner. She filed a complaint with OSHA.

OSHA studied the air pollution in the shop and agreed that it was a threat to workers’ health. It ordered the shop’s owner to install enclosures on the lathes to cut down on the amount of dust put into the air and filter-equipped fans throughout the shop to capture any wood dust that escaped from the enclosures. Because the lathe enclosures and fans needed to be custom-designed and installed, OSHA allowed the shop’s owner six months to correct the situation.

In the meantime, OSHA ordered the shop’s owner to immediately provide Leslie and all the other people employed there with dust-filtering masks to wear over their mouths and noses. However, since OSHA regulations generally require employers to make the workplace safe and not just protect workers from an unsafe work situation, the masks were considered merely a temporary part of the long-term abatement plan.

Preventing Additional Injuries
Workplace hazards often become obvious only after they cause an injury. For example, an unguarded machine part that spins at high speed may not seem dangerous until someone’s clothing or hair becomes caught in it. But, even after a worker has been injured, employers sometimes fail—or even refuse—to recognize that something that hurt one person is likely to hurt another.

If you have been injured at work by a hazard that should be eliminated before it injures someone else, take the following steps as quickly as possible after obtaining the proper medical treatment:

If you believe the hazard presents an immediate life-threatening danger to you and your coworkers, call OSHA’s emergency reporting line at 800-321-6742.

File a claim for workers’ compensation benefits so that your medical bills will be paid and you will be compensated for your lost wages and injury. Workers’ compensation claims can cost a company a lot of money; filing such a claim tends to quickly focus an employer’s attention on safety problems. In some states, the amount you receive from a workers’ comp claim will be larger if your injury was due to a violation of a state workplace safety law.

Point out to your employer the continuing hazard created by the cause of your injury. As with most workplace safety complaints, the odds of getting action will be greater if you can organize a group of employees to do this.

If your employer does not eliminate the hazard promptly, file a complaint with OSHA and any state or local agency that you think may be able to help.

An OSHA inspector who finds a workplace safety hazard or other violation will tell all affected employees about it and post a danger notice before leaving the workplace. This public notice of an unsafe condition is often the impetus an employer needs to take it seriously and correct it.

Caution

The importance of being specific. Like many other government agencies, OSHA is a huge bureaucracy that is organized and operated according to computerized file numbers. The best way to get prompt service and accurate information from OSHA is to be as specific as possible. In your dealings with OSHA, be sure to mention the name of the company, the department of that company, the number assigned to the complaint that you are tracking, and the date on which it was filed.

Jot down the names and numbers of those with whom you speak. And keep detailed notes of your conversations, complete with dates and times.

3. Contesting an Abatement Plan

You have the right to contest an abatement plan directed to your employer by OSHA to correct a workplace hazard—for example, if you feel the suggested plan is insufficient. To do so, send a letter expressing your intent to contest the plan to your local OSHA director within 15 days after the OSHA citation and announcement of the plan is posted in your workplace. You need not list specific reasons for contesting the plan in this letter; all you need to make clear is that you think the plan is unreasonable.

April 10, 20XX

Ms. Mary Official
Regional Director
Occupational Safety and Health
Administration
321 Main Street
Anycity, USA 12345

Dear Ms. Official:

As allowed by 29 U.S.C. Section 659(e), I wish to contest the abatement plan agreed to by your agency and my employer, the Oldtime Mousetrap Company. This abatement program resulted from a complaint that I filed with your office on April 3, 20XX. That complaint was assigned number A-123456 by your office.

I contest this agreement because I believe that it is unreasonable.

Sincerely,

Elmer Springmaker
456 Central Road
Anycity, USA 12340
123-555-5555

Caution

There really is strength in numbers. If other employees feel the abatement plan is unfair or insufficient, encourage them to register their protests with OSHA as well.

After it receives your letter, OSHA will refer the matter to the Occupational Safety and Health Review Commission in Washington, D.C., an agency independent of OSHA. That commission will send your employer a notice that the abatement plan is being contested.

This notice will order the employer to post in the workplace an announcement that the plan is being contested. It will also require the employer to send a form that certifies the date on which that announcement was made back to the commission—with copies to OSHA, to you, and to other employees who have contested the plan.

Then, everyone involved in the case has ten days from the date the contest notice was posted to file an explanation of their viewpoints on the abatement plan with the commission. Copies must also be sent to all others involved in the case.

4. Administrative Review

When attempts to reach a resolution are unsuccessful, the commission submits the case to an administrative law judge. These proceedings usually take several months—and sometimes years—depending upon the complexity of the workplace hazards involved.

Hearings before administrative law judges are very much like a trial. Much time and money can be consumed in gathering evidence, and the hearings are usually scheduled during daytime hours, when most employees are at work. You will probably have to hire a lawyer to help if you decide to pursue your safety complaint at this level.

Tips on Presenting Your Views
The explanation you file on the abatement plan need not be elaborate. It should be as clear, brief, and precise as possible. For example, if you have made a list of employee injuries that have already resulted from the hazard in your workplace, list the date, time, location, and identity of the worker injured for each incident in your explanation.

Your explanation need not be typewritten, but your odds of communicating your viewpoint effectively will be increased if it is easy to read. If you do not have access to a typewriter or computer, consider having your explanation typed by a commercial typing service. You can usually find them in the Yellow Pages of your local telephone directory.

Send your explanation by certified mail to:

Executive Secretary
Occupational Safety and Health Review Commission
200 Constitution Avenue, NW
Washington, DC 20010

Be sure to include a cover letter—and to specify in it the name of the company involved, the number assigned to the case by the review commission and OSHA, and your mailing address and telephone number. Send a copy to the OSHA office where you filed your original complaint, to your employer, and to any people identified in the paperwork the commission sent to you as parties in the case. Also, be sure to save a copy of your cover letter, your explanation and any supporting documents that you send with it for your personal files.

After it has gathered all the statements on the case, the commission will typically turn them over to U.S. Labor Department lawyers who will attempt to meet with everyone who submitted statements and negotiate a resolution that is agreeable to all. The commission tries to negotiate settlements whenever possible, and by this point everyone involved will have had an opportunity to read and think about each other’s viewpoints. So the odds are that your complaint will be resolved at this stage.

You also have the right to appeal a decision by an administrative law judge for the Occupational Safety and Health Review Commission to the full commission or in federal court, but you will probably have to hire a lawyer to help you at these levels as well.

5. Walking Off the Job

OSHA gives you the right to refuse to continue doing your job in extreme circumstances that represent an immediate and substantial danger to your safety.

This right is limited. You cannot walk off the job and be protected by OSHA in just any workplace safety dispute—and this tactic cannot be used to protest general working conditions. But OSHA rules give you the right to walk off the job without being discriminated against later by your employer if the situation is a true workplace safety emergency.

A walk-off will be legally merited only if your situation meets all of the following conditions:

You asked your employer to eliminate the hazard and your request was ignored or denied. To protect your rights, it would be best to tell more than one supervisor about the hazard or to call the danger to the attention of the same supervisor at least twice—preferably in front of witnesses.
You did not have time to pursue normal OSHA enforcement channels. In most cases, this means that the danger must be something that came up suddenly and is not a safety threat that you allowed to go unchallenged for days, weeks, or months.
Staying on the job would make a reasonable person believe that he or she faced a threat of serious personal injury or death because of the workplace hazard. If the hazard is something that you can simply stay away from—such as a malfunctioning machine in a work area that you do not have to enter—it probably would not qualify as creating an emergency.
You had no other reasonable alternative to refusing to work, such as asking for a reassignment to another area.

Example

Mike is a welder in a truck building plant. Shortly after starting work one day, he noticed that a large electrical cable running along the plant’s ceiling had broken overnight, was coming loose from the hardware attaching it to the ceiling, and was dangling closer and closer to the plant floor. He and several of his coworkers immediately told their supervisor about the broken cable, but the supervisor did nothing about it. The group also told the supervisor’s boss about the danger, but still nothing was done to correct it.

By about 11 a.m., the broken cable had dropped to the point where it was brushing against the truck body that Mike was welding. Sparks flew each time the cable and the truck body touched. Because he had a reasonable fear that an electrical shock transmitted from the broken cable could seriously injure or kill him, Mike walked off the job. His supervisor fired him for leaving work without permission. But, because the danger fit OSHA’s definitions of an emergency, OSHA ordered the company to reinstate Mike to his job with back wages—after first repairing the broken and dangling cable.

If you use the extreme option of walking off a job because of a safety hazard, be sure to contact your nearest OSHA office as soon as you are out of danger. Call the agency’s emergency reporting number: 800-321-6742. Jot down the name of the OSHA officer with whom you speak—and also note the time that you report the hazard. That will preserve your right to be paid back wages and other losses from the time that the hazard forced you to walk away from work.

Tracking OSHA Actions
Any citation issued by OSHA must be posted for at least three days in a conspicuous place within the workplace it affects. If the hazard specified in the citation is not corrected within three days after the citation is issued, then the citation must remain posted until it is corrected.

Compliance officers are required to advise those who originally filed a complaint of the action taken on it. If you need more information about the outcome of an OSHA investigation that affects your workplace, call, write, or visit your local OSHA office.

If OSHA has given your employer an extended time to remedy a workplace hazard, then you also have a right to request a copy of that abatement plan from your employer. Your other recourse is to obtain a copy from the OSHA compliance officer who handled your complaint.

6. Penalties for Retaliation

Under OSHA, it is illegal for an employer to fire or otherwise discriminate against you for filing an OSHA complaint or participating in an OSHA investigation. OSHA can order an employer who violates this rule to return you to your job and to reimburse you for damages—including lost wages, the value of lost benefit coverages, and the cost of searching for a new job. A number of state laws also protect against retaliation for reporting workplace health and safety violations.

How to Fight Back Against Retaliation
OSHA forbids your employer from lashing out at you—cutting your pay or demoting or firing you—because you file or help investigate a complaint about an unsafe workplace. However, the Act does not authorize you to enforce this restriction by going directly into court; you must ask OSHA to intercede.

If you suspect illegal retaliation, you have 30 days from the time the illegal action took place to file a complaint about it with your local OSHA office. The outcome of your illegal discrimination complaint may turn on whether you can prove that you were fired or demoted because you contacted authorities, not because your performance slipped or economic cutbacks made it necessary. Be sure to back up your complaint with as much documentation for your employer’s action as possible.

Once you have filed a complaint about illegal job discrimination, OSHA has 90 days to respond. If you have shown that you were fired or otherwise punished because of complaining to OSHA, the compliance officer handling your complaint will attempt to convince your employer to take the proper action to remedy the situation. For example, if you were demoted in retaliation for your complaint, the OSHA compliance officer would probably ask your employer to reinstate you to your original position and give you the back pay to which you are entitled.

If OSHA is unsuccessful in talking your employer into reversing the effects of the illegal discrimination, it can sue your employer in federal court on your behalf.

The Occupational Safety and Health Act | Health and Safety

2009-05-02T05:44:00.000-07:00

The main federal law covering threats to workplace safety is the Occupational Safety and Health Act, or OSHA. (29 U.S.C. §§ 651 to 678.) That law created the Occupational Safety and Health Administration (also called OSHA) under the U.S. Department of Labor to enforce workplace safety. And it created the National Institute for Occupational Safety and Health (NIOSH) to research ways to increase workplace safety.

OSHA broadly requires employers to provide a safe workplace for employees—one that is free of dangers that could physically harm those who work there. The law implements this directive by requiring employers to inform employees about potential hazards, to train them in how to deal with hazards, and to keep records of workplace injuries.

Sometimes, workplace dangers are caught and corrected during unannounced inspections by OSHA. But the vast majority of OSHA’s actions against workplace hazards are initiated by complaints from employees or labor unions representing them.

Still more reform is needed. According to recent estimates, six million Americans are injured at work each year, and more than 5,000 workers actually die as a result of their injuries. In addition, 50,000 Americans die each year from illnesses caused by chemicals they were exposed to while on the job.

Caution

States have OSHA laws, too. About half the states now have their own OSHA laws. The legal requirements for workplace health and safety in the state laws are generally similar to the federal law. In some cases, the state laws are more strict.

1. Who Is Covered

Unlike many other laws which cover only companies with a minimum number of employees, OSHA covers nearly all private employers engaged in interstate commerce. That includes nearly every employer that uses the U.S. Postal Service to send mail to other states or makes telephone calls to other states. Independent contractors are not specifically covered by the law.

OSHA does not apply to state and local governments. However, these employees have some protection if their state or local government has a safety plan. As an incentive to these employers, OSHA will fund half the cost of operating such a plan. Farms owned and operated by a family are the only significant private employers exempted from OSHA coverage.

Note

For more information on the basics of the law, see “All About OSHA,” a free pamphlet. You can download it from the agency’s website at www.osha.gov. You can also order it by calling OSHA Publications at 202-693-1888.

2. OSHA Requirements

The Occupational Safety and Health Act requires all private employers to maintain a workplace that is as safe and healthy for employees as is reasonably possible. Under OSHA, all employers are charged with this general safety duty. In addition, the law sets specific workplace safety standards for four major categories of work: General Industry, Maritime, Construction, and Agriculture.

Safety regulations are usually concerned with preventing a one-time injury—falling from an unsafe ladder or tripping on an irregular walkway, for example.

The Act’s health concerns are in preventing employee illnesses related to potential health dangers in the workplace—exposure to toxic fumes or asbestos, for example—and cumulative trauma such as Carpal Tunnel Syndrome.

The law quite simply, but frustratingly, requires employers to protect workers from “recognized hazards.” It does not specify or limit the types of dangers covered, so hazards ranging from things that cause simple cuts and bruises, to the unhealthy effects of longterm exposure to some types of radiation, are all arguably covered.

But proving the law was violated is not easy. To prove an OSHA violation, you must produce evidence of both of the following:

Your employer failed to keep the workplace free of a hazard.
The particular hazard was recognized as being likely to cause death or serious physical injury.

Under OSHA, the definition of a workplace is not limited to the inside of an office or factory. The Act requires that work conditions be safe no matter where the work is performed—even where the workplace is an open field or a moving vehicle.

In addition to the general duty to maintain a safe workplace, employers are required to meet OSHA’s safety standards for their specific industries. Depending on the types of hazards and workplaces involved, the employer’s responsibility for creating and maintaining a healthy and safe workplace can include such diverse things as informing workers about potentially hazardous substances and labeling them, upgrading or removing machinery that poses a danger, providing employees with special breathing apparatus to keep dust created by a manufacturing process from entering workers’ lungs, improving lighting above work areas, providing emergency exits and fire protection systems, vaccinating against diseases that can be contracted at work, or even tracking the effects of workplace conditions on employees’ health through periodic medical examinations.

Finally, OSHA requires employers to display a poster explaining workers’ rights to a safe workplace in a conspicuous spot. If the workplace is outdoors, the poster must be displayed where employees are most likely to see it—such as in a trailer at a construction site where workers use a time clock to punch in and out.

These posters are supplied to employers by OSHA and commercial publishers. An employer’s failure to display such posters is itself a violation of OSHA rules.

3. Injury and Illness Reports

Within eight hours of any workplace accident that results in the death of a worker or requires hospitalization of four or more workers, employers must report complete details to OSHA, including names of injured workers, time and place of the accident, nature of the injuries, and any type of machinery involved in the accident. All employees and former employees must be given access to this report upon request.

Companies employing ten or more people must also keep records of workers’ work-related injuries and illnesses that have caused death or days off work and post a report on those injuries and illnesses.

Conduct Codes | Privacy Rights

2009-04-29T07:42:00.000-07:00

1. Policies Against Marrying

No Paint, No Powder, No Job
Darlene Jespersen toiled for nearly 20 years as a bartender at the sports bar in Harrah’s Casino in Reno. Along the way, she garnered rave performance reviews from her supervisors, along with a stack of customer feedback forms praising her excellent service and good attitude.

Then Harrah’s served up something new—a Beverage Department Image Transformation Program with new appearance standards for employees, called “Personal Best.” It required all women who work in the beverage department to wear makeup—foundation or powder, blush, lipstick, and mascara applied neatly in complimentary colors”; stockings; colored nail polish; hair “teased, curled, or styled every day” and “worn down at all times, no exceptions.”

Men, on the other hand, were simply forbidden by the policy from wearing any makeup of any kind and required to maintain trimmed hair and fingernails.

Jespersen claimed that making up was not her style—and protested that it made her feel “dolled up” like a sexual object and undermined her ability to deal with drunk or rowdy customers on the job. After gamely trying to follow the Personal best guidelines for a while, she stopped—and was fired.

Jespersen filed a federal lawsuit accusing Harrah’s of sex discrimination. But an allmale panel held against her, opining that that there was no proof that Harrah’s Personal Best policy imposed unequal burdens on men and women workers.

Jespersen v. Harrah’s Operating Co., Inc., 392 F. 3d 1076 (2004).

Some such policies, however, may be on shaky legal ground. Nearly half the states explicitly prohibit public and private employers from discriminating based on marital status.

2. Policies Against Dating

Clothing and Grooming Codes | Privacy Rights

2009-04-27T06:09:00.000-07:00

In general, employers have the right to dictate on-the-job standards for clothing and grooming as a condition of employment. Codes governing employees’ appearance may be illegal, however, if they result in a pattern of discrimination against a particular group of employees or potential employees. This type of violation has most often been mounted in companies with different codes for male and female employees.

1. Dress Codes

Many companies have policies about uniforms to keep their employees looking uniform—a legal goal. There is nothing inherently illegal, for example, about a company requiring all employees to wear navy blue slacks during working hours.

Many employers provide workers with some or all of the clothing that they are required to wear on the job. A few companies even rent suits for their employees to assure that they will be similarly dressed.

Although generally legal, such systems can violate your rights if the cost of the clothing is deducted from your pay in violation of the Fair Labor Standards Act (FLSA). For example, it is illegal under the FLSA for an employer to deduct the cost of work-related clothing from your pay so that your wages dip below the minimum wage standard, or so that the employer profits on the clothing.

A few states have attempted to address the concerns of employees who fear their uniform costs will cut into their earnings and have passed laws that prohibit employers from charging employees for required uniforms. But these laws are very narrow—and often do not apply to workers who need the economic boost the most, such as restaurant employees. Other laws erase the patina of generosity by imposing complicated schemes for when an employer may charge employees for cleaning a uniform. If you have questions about the legality of uniform charges, contact your state department of labor.

And, sometimes, the legal lines on dress restrictions become blurry. Courts have held, for example, that an employer cannot require female employees to wear uniforms if it allows male employees to wear street clothes on the job. And some differences that seem to be gender-based—such as barring men from wearing earrings but allowing them for women—have been allowed to stand. The courts reason that the differences in dress codes are not discriminatory if they do not put an unfair burden on one gender or the other.

2. Grooming Codes

Most workplace grooming codes simply require that employees be clean and presentable on the job—a reasonable request. And such codes are rarely challenged.

However, several lawsuits challenging workplace grooming codes have been waged by black men with Pseudofollicullitis Barbae, a race-specific skin disorder making it painful to shave. Several individuals have successfully challenged companies that refuse to hire men with beards or that fire men who do not comply with no-beard rules.

Example

Nelson, a black man, was advised by his physician not to shave his facial hair too closely because that would cause his whiskers to become ingrown and infected. Although Nelson took with him to a job interview a note from his doctor attesting to this problem, he was turned down for employment because the company where he had applied had a no-beard policy.

Nelson filed a complaint against the company under his state’s antidiscrimination laws on the basis of racial discrimination. Medical experts testified in his case that the condition which prevented Nelson from shaving usually affected only black men.

The court ruled in Nelson’s favor, saying that the company’s failure to lift its ban on beards despite Nelson’s well-documented medical problem resulted in illegal workplace discrimination against black men.

Searches and Seizures | Privacy Rights

2009-04-25T04:36:00.000-07:00

Most employers would claim a legitimate desire to keep workplaces free of illegal drugs, alcohol, and weapons. And most employees would claim that they have a right to expect that their personal belongings will remain safe from the groping hands of their employers.

The legal truth lies somewhere between. Employers are generally free to search through an employee’s personal items kept at work—unless the employee reasonably expects that the spot in which those items are stored is completely private. An employer who searches an employee’s private belongings such as a purse, briefcase, pockets, or car must usually meet a higher standard and have a compelling reason to do so—such as the belief that work property is being stolen and hidden inside.

Someone’s Reading Over Your Shoulder
The American Management Association (AMA) regularly polls U.S. businesses about their policies and practices in monitoring workplaces. The most recent survey reflects a growing concern with the ease and availability of electronic communication on the job—and particularly the bugaboo potential of Instant Messaging (IM).

In some of the more poignant responses to queries from the 2004 survey, companies reported that:

Employee email has been subpoenaed by a court or regulatory body—20%.

They have a written email retention and deletion policy—35%.

Employees receive training about email risks, rules and policies—54%.

There is a written policy governing email use and content—79%.

Outgoing and incoming email is monitored—60%.

Internal email between employees is monitored—27%.

About 58% of the survey respondents confessed to sending and receiving personal IM chat at work—including that dubbed “inappropriate and potentially damaging” such as attachments (19%); jokes, gossip, rumors, or disparaging remarks (16%); confidential info about the company, coworkers, or clients (9%); sexual, romantic, or pornographic content (6%). And, here, the AMA sounded the clarion call, warning that: “employers should view IM as a form of turbocharged email, creating a business record that must be monitored and managed…or face potentially costly consequences tomorrow.”

As an employee, you might want to lay off the IM messages on the job. This instant.

Example

Thomas sold household appliances for a department store that provides each employee with a storage cabinet for personal belongings in a room adjacent to the employee lounge. The store’s employee manual states that, although the company does not provide locks for the cabinets and does not take responsibility for any thefts from the storage area, employees may bring in a lock of their own to secure their individual cabinet.

One day while at work, Thomas was called to the manager’s office, where he was confronted with a letter that had been written to him from his drug rehabilitation counselor. The manager said the letter had been found in his storage cabinet during a routine search by the company’s security force, and that he was being fired because he had a history of drug abuse.

Thomas could likely win an invasion of privacy lawsuit against his former employer because, by allowing Thomas to use his own lock to secure his cabinet, the department store had given him a logical expectation of privacy for anything kept in that cabinet. His claim would be somewhat weaker if his former employer had furnished the locks and doled out the keys or combinations to them, because Thomas would then be on notice that others could get into his locker—defeating his claim to an expectation of privacy.

Another fact that weighs heavily in determining whether an employer’s search is legal is the reasonableness of its length and scope. For example, an employer who suspected an employee of stealing foot-long copper piping might be justified in searching his or her work locker, but not purse or pockets.

Surveillance and Monitoring | Privacy Rights

2009-04-24T07:34:00.000-07:00

We have arrived at the place we long feared: Technological advances have made it easy for Big Brother—and anyone else who wants to join him—to watch us. In truth, most employers cannot properly be painted as paranoid Peeping Toms. And the law does require that most workplace monitoring—listening in on telephone calls, audiotaping, or videotaping conversations—must have some legitimate business purpose. Other than that, however, there are very few federal legal controls protecting workers from being watched and listened to while at work.

If a Coworker Has HIV Infection or AIDS
If someone you know has HIV infection or AIDS, you may feel anxious. That’s a normal reaction. People with HIV infection or AIDS also feel anxious about their health and about how coworkers will treat them.

Be supportive of coworkers with HIV infection or AIDS. If you have a close relationship, you can let the person know you are concerned and offer support.

Most people with HIV infection or AIDS are able to function normally and independently. They want to live and work without being singled out or harassed. They need your understanding and sensitivity.

Let the person with HIV infection or AIDS decide whom to tell about their situation. Do not spread rumors or gossip about someone with HIV infection or AIDS.

People infected with the virus have damaged immune systems. Be careful not to expose them to your colds or coughs. Even a minor cold can be dangerous to someone with HIV infection or AIDS.

Your coworkers may have a spouse, family member, life partner, or close friend with the virus. Be supportive of them.

Source: National AIDS Fund

Some states set their own bounds on how much prying you must tolerate. For example, several states have laws specifically restricting searches and surveillance of employees, and some of those laws are quite powerful.

In Connecticut, for example, an employer that repeatedly uses electronic devices such as video cameras or audiotape recorders to monitor employees in restrooms, locker rooms, or lounges can be fined and sentenced to jail for 30 days. (Conn. Gen. Stat. § 31-48b 1987.)

1. Telephone Calls

In general, it is legal for employers to monitor business-related telephone calls to and from their own premises—for example, to evaluate the quality of customer service. However, a federal law, the Electronic Communications Privacy Act, or ECPA (18 U.S.C. §§ 2510 to 2720), puts some major limitations on that right. The ECPA restricts individuals and organizations, including employers, from intercepting wire, oral, or electronic communications.

Under the Act, even if a call is being monitored for business reasons, which is perfectly legal, if a personal call comes in, an employer must hang up as soon as he or she realizes the call is personal. An employer may monitor a personal call only if an employee knows the particular call is being monitored—and he or she consents to it.

While the federal law seems to put some serious limits on employers’ rights to monitor phone calls, some state laws have additional safeguards. A number of them require, for example, that not only the employee but the person on the other end of the phone must know about and consent to the call being monitored.

Caught Red-Lipped, She Got Away
A decade ago, the first test of the ECPA’s bounds questioned an employer’s right to secretly monitor workplace calls.

In the case, Newell and Juanita Spears, owners of a liquor store, tape recorded and listened to the telephone calls of an employee they suspected of helping rig a burglary of the store. They first warned the employee, Sibbie Deal, to stop making personal calls and that her calls might be monitored. The Spearses recorded about 22 hours of phone calls. While the tapes mentioned not a peep about the burglary, they did reveal that Deal sold a keg of beer at cost in violation of store policy—and that she carried on long and salacious phone calls with her boyfriend while store customers presumably listened and waited.

The Spearses fired Deal—first playing her a snippet of the tapes to explain their beef. The court held that the Spearses had violated the ECPA by taping and playing her calls and that warning her they might monitor the calls did not qualify as consent. (Deal v. Spears, 980 F.2d 1153 (8th Cir. 1992).)

Prying Into a McLove Affair
When Michael Huffcut and Rose Hasset became smitten with each other a few years ago, they also became what many couples in the first throes of romance are: sappy and careless. Huffcut worked as a regional supervisor at a McDonald’s in Elmira, New York. Hasset held a management-track position at a McDonald’s 60 miles up the road in Binghamton. When the two weren’t able to share happy meals together, they kept in touch by phone.

Harry Harvey, another McDonald’s manager, intercepted messages the lovers left on each other’s voice mail systems at work. He then relayed them to Fred Remillard, operator of a dozen of the fast food franchises, who directed Harvey, an alleged friend of the Huffcut family, to play the torrid tapes to Huffcut’s wife, Lisa.

That angered both of the Huffcuts. But when Michael complained that his bosses were wrong to spy on him, he was fired.

Michael and Lisa Huffcut each sued McDonald’s for $1 million, claiming, in addition to a violation of privacy rights, that Remillard intentionally inflicted emotional anguish, embarrassment, and loss of reputation and income on them. McDonald’s defended that there was a legitimate business purpose behind the monitoring—and that Huffcut had no reasonable expectation of privacy in his voice mail, since he should have known it might have been monitored.

Unfortunately for those hoping for some legal guidance on the boundaries of workplace eavesdropping rights, the case did not make it to court.

The Huffcuts and McDonald’s reached an out-of-court settlement in March 1996, the terms of which remain undisclosed. Their lawyer coyly admitted only that: “The case has been resolved to the satisfaction of Mr. and Mrs. Huffcut.”

There is no shortage of happy endings to the story. Rose Hasset was recently promoted to store manager.

2. Voice Mail

Much business communication these days takes place through messages left on voice mail systems—and the ECPA appears to protect them. It states that an employer may be liable for obtaining, reading, disclosing, deleting, or preventing access to an employee’s voice mail messages that are in “electronic storage.” But given the true workings of voice mail systems, this clarifies little. It is not yet known, for example, whether the ECPA—widely denounced as an awkward and muddled piece of legislation—prohibits employers from listening to messages that employees have listened to but not deleted from their systems.

3. Computers

Nearly every workplace in America today conducts some part of its business on computers, and many businesses have become slavishly devoted to them. While hailed by many as timesavers and aids to efficiency, computers have lent a new murkiness to workplace privacy laws.

a. Computer Files

There still is no specific law controlling whether and when the files you create on a workplace computer are legally protected from others’ snooping eyes. In legal battles over the issue, employers who claim a right to rummage through employees’ computer files must show they have a valid business purpose for doing so. Employees often counter this by claiming that they had a valid expectation of privacy—a logical, reasonable belief that others would not retrieve and read the files.

A growing number of employers have attempted to clear up the question of what is and is not considered private about workplace computers by writing specific policies spelling out what is and what isn’t considered proper business use there.

b. Email

While it is unclear whether the Electronic Communications Privacy Act applies to voice mail messages, its application to electronic mail, or email, systems is murkier still. The Act, which originally served to limit wire-tapping, took effect in 1986, before business email systems became the commonplace animals they are today.

Questions of legality aside, the truth is that many employers now routinely monitor email messages that their employees send and receive. This is easy to do. Some email systems copy all messages that pass through them; others create backup copies of new messages as they arrive on the system servers. Workers who logically assume their messages are gone for good when they delete them are painfully surprised to learn they are wrong.

Technology has now turned on itself as more companies buy into the software and electronic surveillance systems that make it easier to monitor email spawned in an earlier age. In some situations, even the most stalwart privacy advocate can see that the forces behind the monitoring are legitimate—motivated by concerns over poor job performance, quality control, loss of trade secrets, and potential liability for sexual harassment and other discrimination claims.

Stories abound of those who abused email privileges at work—and got reprimanded or fired for offensive or overindulgent e-chatting. Courts called upon to decide claims that employers have violated workers’ privacy by prying into their email are still asked to weigh the reasonable expectation of privacy against the employer’s reasonable business justification.

Again, a growing number of companies have taken proactive measures by establishing written policies informing employees of acceptable use of email at work. They range from absolutist controls banning personal email on the job completely, to limiting it to reasonable use, to the rare but existing nod that email will not be monitored on the job. While there is still no overarching law on email privacy, bills drafted so far have focused on this notification feature.

c. Internet Use

The next gasp of complaints about employers monitoring computer use on the job is likely to settle on employees’ Internet habits. And some former employees have already felt the sting when hit with evidence of site surfing that is hard to pass off as work-related. For example, one fellow was recently fired on his third day of work at a large CPA firm after being confronted with company records that revealed repeated trips to a pornography website.

A growing number of employers are taking the draconian step of blocking employees’ access to home email and Internet sites they deem frivolous or without a sufficient work-related purpose, such as movie search and retail sites. Such filters are imperfect at best and often counterproductive at worst—barring access to sites the employee needs to complete a job task. But they are currently legal.

The wisdom quickly emerging is to save personal surftime for your home computer.

4. Mail

Whether or not an employee has the right to expect privacy in the mail he or she receives at work depends for the most part on company custom and policy. In most workplaces, one or more individuals routinely sort and distribute the mail—and most mailings related to work matters range from the boring to the mundane. An employer may inadvertently, or even purposely, open most such mail without incurring any legal liability.

However, sometimes mail arrives addressed to an individual worker that is also marked “Personal” or “Confidential”—or sometimes with the overkilling warning “Personal and Confidential.” An employer who opens such mail, or directs or sanctions another person in the workplace to do so, must usually have a compelling business reason to open it. If the employer cannot demonstrate a compelling reason—for example, that there was important, time-sensitive business information in the envelope, and the employee to whom it was addressed was on a month-long vacation—then the employer may be guilty not only of being rude, but of invading the addressee’s privacy.

5. Audiotaping and Videotaping

As the number of lawsuits over workplace disputes has grown, so has an alarming trend: Employers and employees intent on bolstering their claims have begun to record one another in the hope of capturing some wrongdoing on tape. There are a number of legal and practical problems with this approach to gathering evidence, however.

Federal law appears to allow any person involved in a conversation to tape it without the other person’s knowledge or permission—as long as the recording is not made for the purpose of committing a crime, such as extortion. But a number of state laws have much stricter controls—generally requiring that everyone involved must consent before a conversation or an action can be taped.

Although our guts might tell us the opposite, audiotapes and videotapes also have questionable value as trial evidence. Before any jury would be allowed to hear or see a tape of a workplace scene, the tape would have to satisfy many picky rules designed to qualify and disqualify trial evidence.

Also, in real life, tapes rarely run to script. They often come out garbled or unclear. And they rarely hold up well out of context. What may feel like a damning conversation in which your boss blatantly admits you were fired because of your age may sound very different to those who do not know your boss or you.

A final reality is that if you have any desire to keep your job, confronting your employer with a tape immortalizing some perceived transgression is not the way to convince him or her that you make a loyal asset to the company.

All warnings said, the fact that you have an incriminating tape may make your employer more likely to quickly settle a complaint you lodge. It may make an investigating agency such as the Department of Labor or Equal Employment Opportunity Commission take a closer look at your file. It may make an attorney more inclined to take on your case. But the tactic is just as likely to backfire. You are in the best position to evaluate whether recording a workplace confrontation or other incident may be your best shot at getting strong evidence for later negotiations or a lawsuit—or is more likely to help you lose your job.

Workplace Testing | Privacy Right

2009-04-21T06:29:00.000-07:00

Ostensibly, prospective employers and employees want the same thing: to match the best person with the most fitting job. These days, there are a number of tests that purport to take the guesswork out of the process. Ploughing through the Information Age and into the Biotech Century, many employers are quick to welcome outside evaluations of an individual’s mental and physical fitness and integrity and to believe in their results—often at the risk of sacrificing individual privacy rights.

1. Medical Examinations

A number of insurers require employees to undergo medical evaluations before coverage will begin. Beyond, and often in addition to, that, employers may require specific physical and mental examinations to ensure a qualified workforce. However, there are strict rules on when those exams can be conducted and who can learn the results.

Courts have ruled that the constitutional right to privacy covers medical information and that honesty is the only policy when it comes to medical tests for prospective and existing employees. That is, employers must identify what conditions they are testing for—and get individual consent to perform the tests, first.

a. Examining Job Applicants

Employers may legally give prospective employees medical exams to make sure they are physically able to perform their jobs. However, timing is crucial. Under the federal Americans With Disabilities Act, or ADA covered employers cannot require medical examinations before offering an individual a job. They are, however, free to make an employment offer contingent upon a person’s passing a medical exam.

The ADA also requires your employer to keep your medical history and exam results in a file separate from your other personnel records. Only a few individuals have the right to see your medical file:

a supervisor who needs to know whether your medical condition or health requires that you be specially accommodated within the workplace
First Aid or medical personnel who need to administer emergency treatment, and
government officials who are checking to be sure your employer is complying with the ADA.

During the course of a medical exam, a company-assigned doctor may ask anything at all about an applicant’s health and medical history. However, the final medical evaluation is supposed to include only a stripped-down conclusion: able to work, able to work with restrictions, not able to work.

b. Examining Existing Employees

Employees can be required to take a physical or psychological examination after they are hired only if there is a reason to believe they are jeopardizing the health and safety of the workplace. For example, several courts have opined that if an employee clearly appears to be homicidal or suicidal, then an employer may have the duty to require a psychological exam, or even inform coworkers of the condition, in the name of workplace safety.

Again, while an examining doctor or psychologist has freer reign to ask questions as part of the examination of these employees than of applicants, the final evaluation revealed to an employer is supposed to be succinct and free of detail: able to work, able to work with restrictions, not able to work.

2. Drug and Alcohol Testing

The abuse of alcohol and drugs such as cocaine has been widely publicized for many years—and many private employers now test for drug and alcohol use. The laws regulating drug abuse in the workplace and the testing of employees for such abuse, however, are relatively new and still being shaped by the courts. Currently, there is a hodgepodge of legal rules controlling drug testing—some in the Americans With Disabilities Act, some set out in specific state laws (see the chart below), and a number arrived at through court decisions.

Testing is an institution rather than an aberration in many workplaces these days. About 63% of major U.S. companies regularly test for drugs and alcohol, according to a 2004 poll by the American Management Association. Some of that is explained by the passage, in 1988, of the Drug-Free Workplace Act. (102 Stat. § 4181.) That law dictates that workplaces receiving federal grants or contracts must be drug-free or lose the funding, although it does not call for testing or monitoring workers.

Work-related drug tests take a number of forms. Analyzing urine samples is the method most commonly used, but samples of a worker’s blood, hair, and breath can also be tested for the presence of alcohol or other drugs in the body. Typically, state laws set out the testing methods that may or must be used. Many statutes provide for retesting, at the employee’s expense, if the initial results are positive.

Metabolics of illegal substances remain in urine for various periods: cocaine for approximately 72 hours, marijuana for three weeks or more. Detectable residues apparently remain in hair samples for several months.

a. Testing Job Applicants

In general, employers have the right to test new job applicants for traces of drugs in their systems as long as all of the following are true:

The applicant knows that such testing will be part of the screening process for new employees.
The employer has already offered the applicant the job.
All applicants for the same job are tested similarly.
The tests are administered by a state-certified laboratory.

Today, most companies that intend to conduct drug testing on job candidates include in their job applications an agreement to submit to such testing. If, in the process of applying for a job, you are asked to agree to drug testing, you have little choice but to agree to the test or drop out as an applicant.

b. Testing Existing Employees

There are a number of employees who, because of their specialized positions or type of work, can be tested more freely for drugs and alcohol use. For example, the Department of Transportation requires drug testing for some critical positions, such as airline pilots. In addition, courts have routinely approved random drug testing for employees with national security clearances, prison officers, employees at chemical weapons and nuclear power plants, and police officers. Note, however, that while many laws allow such employees to be tested, they do not require automatic discharges if the results are positive.

But there are some legal constraints on testing existing employees in most private employment jobs for drug usage. Companies cannot usually conduct blanket drug tests of all employees or random drug tests; the testing must usually be focused on an individual. In some cases where employers have tested for drugs without good reason, the employees affected have sued successfully for invasion of privacy and infliction of emotional harm.

However, the courts have generally ruled that companies may test for drugs among employees whose actions could clearly cause human injury or property damage if their performances were impaired by drugs, and in cases where there is good reason to think that the employees are abusing drugs. For example, a bulldozer operator who swerved the machine illogically through a field crowded with workers could be the legal target of drug testing.

And a legal secretary found slumped at her desk, unable to respond cogently to questions asked of her, was also considered fair game for a drug test.

c. Challenging Drug Tests

As an employee, you can always refuse to take a workplace drug test. But, if you are fired because of your refusal, you may have little recourse. Your employer needs only to show that he or she had good reason to believe that you were a safety hazard on the job or that you seemed unable to perform the work required. You would be placed in the untenable position of proving that your employer knew no such thing. You may, however, be able to win your job back if you can show that you were treated differently from other employees in the same position.

If you have been given a drug test and unfairly suspended or demoted because of it, your best bet may be to argue that the testers did not meet with the strict requirements for form and procedure set out in your state law. (See the chart below.) And note that employers are free to add safeguards to protect against specimen tampering—requiring those taking the test to remove their own clothing and don hospital gowns or providing a test monitor who checks the temperature of the urine and adds dye to toilet water, as examples. However, a modicum of discretion is required; while most courts have found it reasonable to have a monitor listen as a urine test is administered, a number have found it an unreasonable invasion of privacy for the monitor to watch.

In addition, many laws require employers to maintain workplace counseling and outreach programs before they can test employees. While most employers these days are too savvy to slip up on procedural details, many of the laws are so picky and detailed that it may be worth your while to wade through and see whether your test made the grade.

d. State and Local Drug Testing Laws

As mentioned, a number of state courts have set out rulings defining when and why drug tests may be given. Some recent examples:

Two employees at an electronic equipment manufacturer, a truck driver and an editor of the company’s user manuals, challenged the company’s random drug testing program. A Massachusetts court found that the employer’s legitimate business interests justified the drug test of the driver, whose job involved safety and liability risks. However, the court held that testing the editor was impermissible and that the employee’s privacy interests outweighed the employer’s interests, because the company failed to show a sufficient connection between his job duties and any harms feared. It noted specifically that he did not have a security clearance at the company, nor did he work directly on matters of national security. (Webster v. Motorola, Inc., 637 N.E. 2d 203 (1994).)
An employee was required to submit to a drug test when she was hired at a Denver car dealer. Nearly a year later, her employer informed her that it had overlooked the test result, which was positive for marijuana. When another test was inconclusive, she refused to take the test again and was terminated. A Colorado court held that the state did not have a clearly expressed employee right to refuse drug testing, rejecting the employee’s contention that the testing invaded her privacy. (Slaughter v. John Elway Dodge Southwest/AutoNation, 2005 Colo. App. LEXIS 35 (2005).)
The city of Seattle required a preemployment urinalysis drug test for about half its positions. Several taxpayers challenged the constitutionality of this program, though none claimed to have applied to respondent for employment. A Washington court likened drug testing to a warrantless search that could not be justified merely by concerns of cost and efficiency. It noted that Seattle’s testing program was applied too broadly to positions, such as librarians and accountants, that did not implicate public safety issues. (Robinson v. City of Seattle, 102 Wn. App. 795 (2000).)

In addition, a number of states and several municipalities have laws that regulate workrelated testing for substance abuse. Those that do also specify the scientific procedures to which testing labs must adhere. And many of these laws provide ways of dealing with overbroad or abusive workplace drug testing that are simpler, quicker, and less expensive than filing a lawsuit. Some states also require companies to distribute to employees written policies on drug testing and rehabilitation.

3. Psychological Testing

A number of people who label themselves as Workplace Consultants claim they have developed several series of written questions—integrity tests—that can predict whether a person would lie, steal, or be unreliable if hired for a particular job. And a number of other alleged experts claim to have perfected personality tests that allow employers to tell in advance whether an individual is suited by temperament and talent to a particular position. Employers are drawn to these tactics because they seem to short-circuit the process of interviewing—and because they seem to promise some insight into an applicant’s personality, which can be tough to assess in an interview setting.

Psychological tests are not a new idea. They were first developed during World War I to help the military decide how to assign soldiers to various jobs. Some legal cutbacks to personality and psychological testing in the workplace began in the 1970s, when employers were banned from questioning prospective employees about age, race, or sex. The tests had a heyday again in the early ’90s, shortly after lie-detector screening was curtailed by law. And, today, legions of test publishers have cropped up online—most of which claim they can forecast everything from a potential employee’s likelihood of being honest and hardworking to his or her absence and injury rate on the job. And they promise an analysis fast—often within 48 hours of receiving responses to test questions. Critics say that is a suspiciously tall order to fill so quickly. And there may be legal pitfalls to the tests as well. Despite the doubts that surround them, however, the em ployee screening tests remain popular with many employers, most of whom claim to temper their acceptance with a dollop of skepticism and to cast about for information in more subtle ways.

Today’s prescreening questionnaires usually cover legally forbidden topics in roundabout ways. For example, employers may glean information about marital and family status by asking applicants to give information about hobbies and other interests. And many employers—about 40% of them, according to the American Management Association—use these questionnaires in the process of screening applicants for job openings. But even that temptation has been curbed of late by a number of cases that send a clear warning: Psychological tests cannot be used as an excuse to discriminate against prospective employees—and they must be limited to job-related questions.

A few states have enacted laws against some specific forms of psychological testing. In New York, for example, employers may not require that job applicants or employees take psychological stress evaluator tests. (N.Y. Lab. Code §§ 733 to 739.)

4. Lie Detector Tests

For decades, lie detectors, or polygraphs, that purport to measure the truthfulness of a person’s statements by tracking bodily functions such as blood pressure and perspiration, were routinely used on employees and job applicants.

Employers could—and often did—ask employees and prospective employees questions about extremely private matters such as sexual preferences, toilet habits, and family finances, while a polygraph machine passed judgment on the truthfulness of the answers. Push the machine’s needle too far by reacting to an offensive question and you could be labeled a liar and denied employment.

The federal Employee Polygraph Protection Act (29 U.S.C. § 2001), passed in 1988, virtually outlawed using lie detectors in connection with employment. That law covers all private employers in interstate commerce, which includes just about every private company that uses the U.S. mail or the telephone system to send messages to someone in another state.

Under the Act, it is illegal for all private companies to:

require, request, suggest, or cause any employee or job applicant to submit to a lie detector test
use, accept, refer to, or inquire about the results of any lie detector test conducted on an employee or job applicant, or
dismiss, discipline, discriminate against, or even threaten to take action against any employee or job applicant who refuses to take a lie detector test.

The law also prohibits employers from discriminating against or firing those who use its protections.

While government employees are not protected by this law, they are generally protected from lie detector tests by civil service rules.

a. When Lie Detector Tests Can Be Used

The Employee Polygraph Protection Act allows polygraph tests to be used in connection with jobs in security and handling drugs or in investigating a specific theft or other suspected crime. However, before you can be required to take such a test as part of an investigation of an employment-related crime, you must be given a written notice, at least 48 hours before the test, stating that you are a suspect. And there must be a provable, reasonable suspicion that you were involved in the theft or other conduct triggering the investigation.

The Act does not apply to employees of federal, state, or local government, nor to certain jobs that handle sensitive work relating to national defense.

b. Limitations on the Tests

In addition to the strict strictures on when and to whom the tests may be given, there are a number of restrictions on their format. Before a lie detector test can be administered, your employer must read to you and ask you to sign a statement that includes:

a list of topics you cannot be asked about, including questions on religious beliefs, sexual preference, racial matters, lawful activities of labor organizations, and political affiliation
information on your right to refuse to take the test
the fact that you cannot be required to take the test as a condition of employment
an explanation of how the test results can be used, and
an explanation of your legal rights if the test is not given in keeping with the law.

While the test is being administered, you have the right:

to stop it at any time, and
to be asked questions in a way that is not “degrading or needlessly intrusive.”

When the test is said and done, results can be disclosed only to the employer who ordered the test, the employee who was tested, a court or government agency, or an arbitrator or mediator if there is a court order. The law specifically prohibits prospective employers from getting access to old test results.

c. How to Take Action

The Employee Polygraph Protection Act is enforced by the U.S. Department of Labor. If you have questions about whether the Act applies to your job or if you suspect that you have been subjected to illegal polygraph testing, call the office of the U.S. Labor Department’s Wage and Hour Division nearest you. It is listed in the federal government section of the telephone directory under Labor Department.

There is no official form for filing a complaint. If, after discussing your situation with a Wage and Hour Division investigator, you decide to file a complaint, do so as soon as possible by writing a letter addressed to your local Wage and Hour Division office. Include such details as the name and address of the employer, when the incident occurred, and the address and telephone number where an investigator can reach you. And keep a copy of your letter for your records.

If the Labor Department finds that your rights under the Act were violated, it can fine the employer up to $10,000 and issue an injunction ordering the employer to reinstate you to your job, promote you, compensate you for back wages, hire you, or take other logical action to correct the violation.

If the Labor Department’s action on your complaint does not satisfy you, you can file a lawsuit against the employer to obtain whatever compensation or other remedy would be appropriate. Move quickly, because the lawsuit must be filed within three years. You will probably need to hire an attorney to help you if you decide to file a lawsuit under this Act.But the law allows the court to grant you attorneys’ fees and other costs if you win.

d. State Laws on Lie Detector Tests

Some states have laws prohibiting or restricting employers from using lie detectors in connection with employment, but most have been made obsolete by the federal antipolygraph statute. Some states go farther and prohibit employers from even suggesting such a test.

In addition, state coverage may be broader; while the federal law does not apply to state and local government employees, many of the state statutes do.

Note that the laws in several states provide that an employee who volunteers to take a lie detector test may be given one. But such laws have safeguards, requiring that the tests be administered under approved and supervised conditions and that employees be clearly informed about how and why test results may be used.

5. AIDS Testing

The disease of Acquired Immune Deficiency Syndrome (AIDS) was first identified in 1981. Fairly early on, researchers isolated its viral cause, the Human Immunodeficiency Virus (HIV), which suppresses the immune systems of those who carry it, making them easy targets for various other infections and diseases. Since then, while great strides have been made in treating AIDS symptoms, there still is no cure. Many of those who have the HIV infection live nearly symptom-free. But, ultimately, the disease is still considered fatal—and is spreading.

The impact on American workplaces has been and will continue to be enormous. Not only have hundreds of thousands of workers died, most of them suffered also from the reactions of others—irrational fear and ostracism—that play in tandem with the AIDS epidemic: AFRAIDS. Many workplaces responded to the hysteria with more hysteria, developing intrusive policies of isolating workers suspected to have the disease.

Another offshoot of this hysteria is the practice of testing employees for the HIV virus. While a number of courts have struck down state and local efforts to screen employees for HIV, the practice continues in many workplaces.

a. Types of Tests

Although medical researchers may develop more methods of testing for the HIV virus, the test first approved for commercial use by the Food and Drug Administration in 1985 is still in use today. Basically, the test measures antibodies in the blood that are stimulated by the HIV virus. If a test is positive, indicating exposure to the deadly virus, a confirmation test is usually performed that uses a more complicated system of weighing molecular weights found in the blood.

However, there are a number of things the HIV antibody testing does not indicate. Tests do not identify people who have AIDS. AIDS is defined by the Centers for Disease Control (CDC), and the definition is still evolving. Currently, an individual is considered to have AIDS if he or she has any of the AIDS-related diseases specified by the CDC and has a T-count—or number of infection-fighting white corpuscles—of less than 200 in a cubic milliliter of blood.

Also, tests do not identify every person carrying the AIDS virus. The tests are aimed at measuring the antibodies stimulated by HIV, so they do not work effectively on individuals who have been exposed to the virus but have not developed antibodies to it—a period which usually takes about eight weeks, but may take up to a year or more.

b. Legal Controls on Testing

Originally, HIV blood tests were fashioned to screen blood, not people. But when prospective employees and employees are subjected to testing, the reality is that people are being screened—and sometimes labeled as unfit workers.

A federal law, the Americans With Disabilities Act, prohibits testing job applicants to screen out people with HIV or AIDS. Once an applicant is offered a job, however, the legal constraints on testing become a bit murkier. To avoid singling out any individual or group, which would be illegal discrimination, an employer would have to test all employees. Even then, to justify giving employees an HIV test, an employer would have to show that the test is necessary to determine whether applicants are fit to hold a job. This would be nearly an impossible task, as many people infected with HIV show no symptoms of ill health.

Most states have laws setting some controls on employers’ uses of HIV tests. Test results may not be used to determine suitability for insurance coverage or employment according to the laws in a number of states, including Florida. (Fla. Stat. § 381.004.) And Massachusetts bans employers from requiring employees to take a test as a condition of employment. (Mass. Gen. Laws ch. 111, § 70f.)

In addition, a number of cities have enacted ordinances that put additional limits on how and when employers may test for HIV and AIDS. A strict law in San Francisco, for example, states that employers cannot test for AIDS unless they can show that the absence of AIDS is an essential employment qualification. (San Francisco Police Code §§ 3801-16.)

This area of the law is changing very rapidly. Double check your local, state, and federal law for recent changes. A local clinic, support group, or AIDS hotline may be able to provide you with the most up-to-date local information. A number of organizations also offer information on the HIV virus, AIDS, and resources on AIDS in the workplace.

Your Personnel Records | Privacy Rights

2009-04-19T13:25:00.000-07:00

Your employer is required by law to keep some tabs on you—including information on your wages and hours, workplace injuries and illnesses, and tax withholding, as well as records of accrued vacation and other benefits. That information is usually gathered together in one place: your personnel file. Your file will usually contain little information you did not know or provide to your employer in the first place.

But personnel files can sometimes become the catch-alls for other kinds of information: references from previous employers, comments from customers or clients, employee reprimands, job performance evaluations, or memos of management’s observations about an employee’s behavior or productivity. When employment disputes develop, or an employee is demoted, transferred, or fired, the innards of his or her personnel file often provide essential information—often unknown to the employee—about the whys and wherefores.

A federal law, the Privacy Act (5 U.S.C. § 552a), limits the type of information that federal agencies, the military, and other government employers may keep on their workers.

However, private employers have a nearly unfettered hand when it comes to the kind of information they can collect. While many states now have some type of law regulating personnel files (see the following chart), most of these laws control not the content of the files, but:

whether and how employees and former employees can get access to their personnel files
whether employees are entitled to copies of the information in them, and
how employees can contest and correct erroneous information in their files.

1. Getting Access to Your File

The best way to find out what a company knows about you, or what it is saying about you to outside people who inquire, is to obtain a copy of the contents of your personnel file from your current or former employer.

In some states, the only way you get to see those files is while collecting evidence after filing a lawsuit against the employer or former employer. And even then you might be in for a legal battle over what portions of the files are relevant to the case. But, in many states, you have the right to see the contents of your personnel file—or at least some of the documents in it—without filing a lawsuit.

State laws on employee access to personnel records generally cover technical matters, such as when your request must be made and how long the employer has to respond. Before you request your file, read the law on procedures for your state. In general, you must make your request to see your personnel files in writing to your employer or former employer as soon as you decide that you want to see them. If you send your request by certified mail, you will be able to prove when the request was submitted, should you need that evidence later.

If you live in a state that does not have a specific law ensuring you access to your personnel records, all is not lost. If you wish to see and copy your personnel files, ask to do so. If you meet with resistance, make a more formal request in writing. If that request is denied, and you genuinely believe your records may contain information that is critical to your position, you may need to consult with an expert such as a private investigator or experienced attorney.

2. Criminal Records

According to recent statistics collected by the Bureau of Justice, approximately one-third of the workforce has a criminal record, most commonly including theft. Despite this high proportion of workers with criminal records, many feel they are approached with wariness, or even subjected to abject discrimination, by employers who learn of their histories.

Arrest and conviction records are public records available to anyone, including an employer, who has the wherewithal and incentive to search for them. These records are also kept by a number of agencies—including police, prosecutors, courts, the FBI, probation departments, prisons, and parole boards. These record keepers are theoretically barred from releasing this information to anyone other than other criminal justice agencies and a few types of specialized employers (those who help manufacture controlled substances or run child care or elder care facilities for example.) In reality, however, slips of the tongue are made and persistent employers can generally find the ways and means to get their eyes on the information.

Most states now have laws that specifically bar employers and prospective employers from getting access to records of arrests that did not lead to convictions. And a growing number of states forbid employers from even asking job applicants about such arrests. But some states, including Hawaii and Wisconsin, expressly allow employers to inquire about past convictions that have rational relationships to the specific job the applicant seeks—a theft conviction, for example, for any person who has access to the company coffers.

Still, there are many exceptions to this Don’t Ask, Don’t Tell rule for specific categories of workers, including most bank employees, securities industry and commodities workers, and nuclear power employees.

Also, states are especially mindful of an employer’s need and right to do thorough background checks when employees and volunteers will be working closely with children or adults who are ill or elderly and may be considered vulnerable. Many statutes specify that those working in schools, adult care homes, nursing homes, home care agencies, and facilities for those with mental and physical disabilities may—and often must—be subjected to criminal background checks before being allowed on the job.

Connecticut stands alone in offering employers overt statutory encouragement to hire qualified applicants who have criminal records.

Whatever the state of the law, the reality is that employers customarily bend and trample on the rules against asking about former arrests and convictions. And, in most states, private employers can check—and are often duty-bound to check—the conviction records of prospective employees. Since most records of criminal convictions are freely open to the public, there is usually little a job applicant or employee can do to stop an employer from discovering them.

3. Medical Records

Medical information about employees comes into the workplace a number of ways. It is volunteered by an employee who is calling in sick. It becomes general knowledge after filtering through the gossip mill. It is listed on the insurance application for a group policy, which your employer will likely have on file.

As a general legal rule, employers are not supposed to reveal medical information about employees unless there is a legitimate business reason to do so. Again, that nebulous standard, so often used as a fall back in workplace controversies, provides little guidance because it is so poorly defined.

In an attempt to curb witting and unwitting leaks of medical information in the workplace, the Americans With Disabilities Act, or ADA—the broad federal law prohibiting disability discrimination on the job—imposes strict requirements on how and where employers must keep medical information on employees.

Under the ADA, medical information must be kept separate from nonmedical information in a secure location—and access to it should be limited to a designated individual.

The law also limits those entitled to learn about medical information in the workplace to:

supervisors of employees whose work duties are limited or who require some accommodation because of a medical condition
first aid and safety workers who may need to administer emergency treatment or respond during an evacuation, and
government and insurance officials who require the information for official business purposes.

Still, despite the confidentiality measures imposed by the ADA, information leaks and abuses still occur. If you are concerned about keeping your medical information confidential and out of the workplace limelight, you must take active steps to do so. If you confide any medical information about yourself to coworkers, ask them not to tell others. Inform all doctors who treat you that they should not reveal anything about your health or treatment to another person without getting a release, or written permission, from you first.

4. Credit Information

This era of the computer is also the era of the ever-present personal credit rating. Credit bureaus—profit-making companies that gather and sell information about a person’s credit history—have become a booming business. And the growing power and popularity of the computerized credit rating has found its way into the workplace, as well.

Many employers now use the same credit bureau files used by companies that issue credit cards and make loans to do routine credit checks on employees and job applicants. Unfortunately, there is very little you can do to prevent employers from evaluating your credit history in deciding whether to hire, promote, or even continue to employ you.

a. Employers’ Access to Your Record

A federal law, the Fair Credit Reporting Act (15 U.S.C. §§ 1681 and following), requires credit agencies to share their data only with those who have a legitimate business need for the information, and employers generally qualify. Employers are given broad access to an individual’s credit report, which they can use to evaluate eligibility for “employment, promotion, reassignment, or retention.” In short, as far as your employer or prospective employer is concerned, your credit rating is an open book.

Credit bureaus typically track not only your bill-paying habits, but also all companies that have asked to see your credit rating when you apply for credit, insurance, a place to live, or a new job. The result is that employers increasingly use credit bureau files to find out whether an employee is job hunting with other companies. And prospective employers may use a shaky credit report to conclude that it is risky to welcome you aboard.

However, an amendment to the Fair Credit Reporting Act gives you some rights to know how and whether a current or prospective employer is using credit information about you. It requires an employer to get your written permission before peeping at your credit report. And the words granting permission can’t be buried deep within a job application form or other word-laden document; you have to sign separately to signal your approval.

While this sounds like strong stuff at first, the truth is that, if you refuse to give approval to the employer’s wondering eyes, you will leave the impression that you have something to hide—and that will likely kill your chances for getting or keeping the job.

Also, the amendment mandates that a prospective employer who rejects you for a job based “in whole or in part” on an item on your credit report must give you:

a copy of the report before turning you down, and
written instructions on how to challenge the accuracy of that report.

Again, while this smells at first whiff like strong consumer protection, the reality is that it is tough to track whether employers have followed the letter of the law. They remain free to claim that you were turned down for reasons entirely separate from the harsh marks on your credit report.

b. How to Take Action

Amendments to the Fair Credit and Reporting Act at least theoretically give you some idea of whether you are up against an employer marauding for credit information that might cause you to lose out on a job.

And an employer who uses your credit information against you is not only supposed to fess up to it, but must also give you the name, address, and telephone number of the credit agency that provided the report about you. You are entitled to a free copy of the report from that agency.

You also have the right to correct any errors in credit reports compiled about you, and most experts recommend that you check and correct your file every few years, especially if you will be job hunting or applying for credit.

Call the nearest office of the Federal Trade Commission, listed in the federal government section of the telephone directory, for guidance on how to correct the report, or check the FTC’s website, at www.ftc.gov. If you suspect a misuse of your credit report, you may want to contact your state consumer protection agency or attorney general to see whether state laws give you additional avenues for action.

Balancing Work and Family: Other Ways to Cope

2009-04-14T16:23:00.000-07:00

Some companies help employees juggle work and family responsibilities in various ways, including:

allowing employees to work part time or to share a job
allowing employees to put in some of their work hours at home
allowing flexible on-site work hours
allocating dependent care spending accounts
providing specific child care benefits, including emergency care programs, onsite care centers, employer-arranged discounts with local care providers, and
providing additional assistance to employees, such as counseling and seminars on work and family issues.

If you feel that one of these options is feasible in your workplace and would make your life more manageable, talk with your employer. Better still, come to the talk armed with success stories of similar set-ups in local companies.

1. Work-at-Home Agreements

These days, many jobs use computers as essential tools. And computers can easily be transported or hooked up to communicate with the main worksite from various locales. Many other kinds of work are also portable and may lend themselves well to work-at-home arrangements for employees.

These arrangements often involve an agreement between the worker and the company—best if it is in writing—that spells out who is responsible for any legal liabilities that arise from the work-at-home arrangement and how worktime will be measured.

For example, a work-at-home agreement may specify that you are responsible for any damage that occurs to a company-owned laptop computer while it is being used in your home. Most homeowners’ and renters’ insurance policies do not automatically cover business equipment, so you may have to purchase additional coverage.

Also, check the agreement against the wage and hour laws to make sure that neither you nor your employer would be breaking the Fair Labor Standards Act through your work-at-home plan. In general, if you are not an exempt employee, the wages and hours provisions of the Act still apply even when you are working at home.

2. Flexible Workhours

In many urban workplaces, where rush hour commuting makes for immense amounts of downtime, 9 to 5 workdays are all but extinct. In fact, a growing number of employers everywhere are putting less credence in the rigid Monday to Friday, 9 to 5 workweek and allowing employees to adopt more flexible work schedules.

When this idea was newer, it was referred to by the high-tech appellation of flextime. Flextime is not a reduction in hours, but simply a shift in the times employees are required to clock in and out of work. An increasingly popular flextime option, for example, is the ten-hour/four-day workweek, as it gives employees at least the illusion of a three-day weekend. Since flextime employees usually maintain 40-hour workweeks, they lose no benefits—such as health care coverage or vacation time—in the bargain.

3. Counseling and Other Benefits

Many employers now make employee counseling an integral part of their discipline procedures. That is, fewer employees are surprised by being fired from a company, since more have had the option of getting some form of counseling first—to improve their work performances, to help them conquer drug or alcohol abuse problems, to help raise awareness about potential sexual harassment.

And more enlightened employers now also offer employees a number of seminars and workshops more indirectly related to the workplace—workshops on building self-esteem, dealing with long-term health care for aging parents, and First Aid and CPR certification. These educational workshops not only train employees in more valuable skills, they also have the more nebulous value of improving morale.

At some workplaces, employees have taken the initiative in setting up their own workshops during lunchtimes or after work hours. Volunteers from local special interest groups—the Red Cross, stress management groups, battered women’s shelters, self-defense trainers—are often available to present the training free or at a very low cost.

The Pregnancy Discrimination Act

2009-04-09T14:35:00.000-07:00

Additional workplace rights for new parents come from the Pregnancy Discrimination Act, or PDA (92 Stat. § 2076), passed in 1978 as an amendment to Title VII of the Civil Rights Act of 1964. This federal law widely prohibits many types of discrimination. The PDA outlaws discrimination based on pregnancy, childbirth, or any related medical condition.

1. Who Is Covered

Like other provisions of Title VII, the PDA applies to all workplaces that:

engage in some type of interstate commerce—today, broadly construed to include all employers that use the mails or telephones, and
have 15 or more employees for any 20 weeks of a calendar year.

2. Available Protections

The PDA specifies that pregnant employees—and those recovering from an abortion—who need time off from work must be treated the same as other temporarily disabled employees. For example, a company that allows employees to return to work with full seniority and benefit rights after taking time off for a surgical operation and recovery must similarly reinstate women who take time off because of a pregnancy.

On the flip side, this law may also help sanction the denial of a benefit to a pregnant worker if that benefit has been denied any other temporarily disabled worker. If it is company policy, for example, to suspend seniority rights and benefits for employees who require extended medical leave, those work benefits must also be denied to pregnant workers on leave.

Also, while the PDA bars discrimination based on pregnancy, unlike the Family and Medical Leave Act, it does not require an employer to provide a pregnant employee with leave—and does not guarantee job security while a worker is out on leave.

The protections in the Act sound sensible and absolute. But, in truth, employers routinely shirk their legal duties when dealing with pregnant workers. The EEOC, which enforces complaints of pregnancy discrimination on the job, reports that the number of charges of this wrong increased by well over third a from 1992 to 2004. And, with 20 million new pregnancies likely among working women in the decade kicked off by the year 2000, the problems and complaints are not likely to shrink without more definitive legislation, stronger workplace policies, or both.

a. Forced Leaves

The PDA bars mandatory maternity leaves—and those that are prescribed for a set time and duration. The focus instead is on whether an individual pregnant worker remains able to perform her job. A pregnant woman cannot be required to take a leave from work during her pregnancy as long as she remains able to do her job.

b. Hiring and Promotion Discrimination

In addition, an employer cannot refuse to hire or promote a woman solely because she is pregnant—or because of stereotyped notions of what work is proper for a pregnant woman to do or not to do.

c. Insurance Discrimination

The PDA also states that an employer cannot refuse to provide health care insurance benefits that cover pregnancy if it provides such benefits to cover other medical conditions.

The sole exception here is that an employer need not pay for health insurance benefits for an abortion—except where the life of the pregnant woman would be endangered if the fetus is carried to term or where there are medical complications following the abortion.

3. Men’s Rights to Leaves

Under Title VII, an employer must grant men the same options for taking leaves from their jobs to care for children as it grants to women. To do otherwise would constitute illegal discrimination based on gender.

State Laws on Family Leave

2009-04-04T12:32:00.000-07:00

The majority of states now have leave laws, but their provisions differ wildly—leaving a patchwork of protections, benefits, and loopholes that are often confusing to both employers and employees.

1. Choosing Federal or State Protections

If your state also has some incarnation of a family leave law, you are free to seek benefits under the federal FMLA or your state law—whichever law offers you the greatest benefit. If you have a baby one year, you may use the leave allotted you by the state; if you become ill the next year, you may be entitled to benefits guaranteed by the FMLA. However, several states have recently amended their laws to provide that state and federal coverage cannot be piggybacked; you must choose coverage under one law or the other.

2. State Laws

State laws governing family leaves differ greatly as to:

the size of workplace covered—varying from 4 to 100
the reasons allowed for time off—some states provide leaves for birth and adoption only; others also provide it for family members’ illnesses; the District of Columbia appears to be among the first to allow leave to care for domestic partners
who is covered—a number of states specify that an employee must have worked for one employer for a minimum time before being entitled to a leave
the length of leave allowed
the length of notice that an employee must give before taking a leave
whether or not benefits must be continued and at whose expense
whether or not an employee is entitled to the same or an equivalent position after returning to work—in some states, this is required only if proper advance notice has been given
how rights to parental leaves are divided when both parents are employed by the same company, and
how the laws can be enforced.

Several states also provide that parents must be given a certain amount of unpaid leave to attend a child’s school conferences.

On their faces, many state laws are more liberal than the federal law. But many state laws are rife with large loopholes, too. For example, the family leave laws in a number of states provide that an employer is free to replace a worker who has taken leave if the time off would burden the workplace.

3. Antidiscrimination Provisions

Some state laws also forbid workplace discrimination on the basis of gender. In states that have no specific family leave laws, antidiscrimination laws often can be used to establish a right for parents to take time off from work for pregnancy and childbirth.

The antidiscrimination laws of most states include marital status among the factors that may not be used as the basis for work-related discrimination. Some states, such as Alaska, for example, go a step farther, by specifically listing parenthood as an illegal basis for discrimination.

4. Enforcing Your Rights

Antidiscrimination laws often can be applied to such leaves only through slow-moving complaints to the Equal Employment Opportunity Commission or through complex and expensive lawsuits. But, in general, state laws that grant family leaves offer a clear basis for enforcing the right to take such a leave.

But, most often, the most direct and constructive way to exercise your right to take a family leave is to know your rights and to make sure your employer is aware of both your plans and the law well before you take a leave. Nearly all state family leave laws have been enacted recently, and your employer may be sincerely unaware of them.

If you have made your employer aware of your right to take such a leave and the employer refuses to comply, the options available to you will vary with the situation.

If your problem seems to be merely a matter of disagreement over interpretation of the law, suggest to your employer calling in a mediator or arbitrator to help settle the dispute.
If your state is listed in this chapter as having a specific leave law, you may be able to have a state agency intervene in your case. To find the appropriate state agency, start with the one responsible for overseeing your state’s antidiscrimination law.
If your case involves a violation of Title VII of the Civil Rights Act, you can file a complaint with the Equal Employment Opportunity Commission (EEOC). If the EEOC decides not to take action in your case, you may be able to file a federal lawsuit on your own.
If your state has no agency to enforce its law, you may be able to file a lawsuit on your own behalf. In some states, those who sue under family leave laws are allowed to collect punitive damages, court fees, and the cost of hiring a lawyer to help.

The Family and Medical Leave Act

2009-04-01T14:27:00.000-07:00

The most sweeping federal law to help workers with the precarious balance between job and family is the Family and Medical Leave Act, or FMLA. (29 U.S.C. §§ 2601 and following.) Under the FMLA, an employee is eligible for up to 12 weeks of unpaid leave during a year’s time for the birth or adoption of a child, family health needs, or the employee’s own health needs.

The employer must not only allow an employee to take the leave, but must allow the employee to return to the same or a similar position to the one he or she held before it. And, during the leave, the employer must continue to make the same benefit contributions, such as paying insurance policy premiums, as the employee was receiving before going on leave. However, the FMLA does not require that employers pay any benefits that are not generally provided to employees—and seniority and pension benefits need not accrue during an employee’s leave.

Employers who violate the Act, including its provisions against retaliating against those who take advantage of its protections, may be required to pay back pay, damages, attorneys’ and expert witnesses’ fees—and, perhaps more important, for the cost of up to 12 weeks of caring for a child, spouse, or parent.

1. Who Is Covered

The FMLA applies to all private and public employers with 50 or more employees—an estimated one-half of the workforce.

To take advantage of this law, an employee must have:

been employed at the same workplace for a year or more, and
worked at least 1,250 hours—or about 24 hours a week—during the year preceding the leave.

2. Restrictions on Coverage

Anticipating that some of the leave provisions in the FMLA might cause a hardship for smaller and some specialized employers, Congress included a number of exceptions to its coverage. Some of the exceptions sound rather harsh and would likely result in dividing some workplaces—providing some employees with benefits that others are blanketly denied. So, to maintain morale and encourage company loyalty, many employers opt to adopt uniform standards for all employees rather than adhere slavishly to the exceptions allowed.

a. 50 Employees Within 75 Miles

Companies with fewer than 50 employees within a 75-mile radius are exempt from the FMLA. This means that small regional offices of even the largest companies may be exempt from the law’s requirements. However, the magic number of 50, for purposes of the FMLA, is computed by adding up all the employees on the payroll, so that those already on leave and those who work erratic schedules are tallied into the final count.

b. The Highest-paid 10%

The law allows companies to exempt the highest-paid 10% of their employees. This exception recognizes the theory that, in many companies, the highest-paid employees are the executives, the leaders, and the managers—the ones who must be around to keep workplaces running smoothly. Employers may choose to provide these employees with unpaid leave, however, and many do—recognizing that the standard is broader than the reality of most workplaces. For example, in a smallish workplace of 100 employees, it is highly unlikely that ten workers will be deemed top-level executives.

c. Teachers and Instructors

Those who work as schoolteachers or instructors are partially exempt from the FMLA—that is, they may be restricted from taking their unpaid leave until the end of a teaching period, commonly a quarter or semester, to avoid disrupting the continuity of the classroom. Teaching assistants and school staff, however, are fully covered under the FMLA.

d. Two Spouses, One Employer

Unless their need for leave is due to a personal medical problem, spouses who work for the same employer must aggregate their 12 weeks of leave time—that is, together, they are entitled to a total of 12 weeks off.

Congress defends this exception in the FMLA as a way to counter an employer’s unwillingness to hire a married couple. In reality, it forces a couple to choose who should be the caregiver in the family. Note, however, that because of the loophole allowing time off for medical problems, if a woman qualifies for a pregnancy leave, her husband may be entitled to family leave to care for her.

3. Reasons for Time Off

The FMLA established what was long awaited in the workplace: a federal standard guaranteeing many workers the right to leave for the birth or adoption of a child and to care for their own or a family member’s serious health condition.

a. Birth, Adoption, or Foster Care

The FMLA states that all covered employees must be given 12 weeks of unpaid leave for the birth, adoption, or foster placement of a child, as long as that leave is taken within a year of the child’s arrival. Also, if the leave is for a new child, it must be taken in a 12-week chunk (unlike a leave for medical problems, which may be scheduled more flexibly).

b. Health Problems

The law is intended to allow workers to provide adequate care for children under 18 who are ill or injured and for children 18 and older who cannot take care of themselves because of a physical or mental disability. Leave is available to care for an employee’s son or daughter—which is broadly defined to include biological, adopted, or foster children; stepchildren; and legal wards. Also covered are children for whom employees stand in the place of parents—such as cases in which a grandparent, aunt, or uncle has complete caretaking responsibilities.

The FMLA also provides for time off for health problems—physical and psychological—that affect either the employee or his or her spouse or parents. The required care need only limit the employee’s ability to work or the employee’s family member’s ability to carry on with daily activities.

In the FMLA, the definition of spouse is limited to “a husband or wife, as the case may be”—overtly banning unmarried partners from the Act’s coverage. In-laws are not included in the definition of parents.

The FMLA’s definition of a medical condition entitling an employee to take a leave is quite liberal. It includes, for example, time off to care for a parent or spouse who has Alzheimer’s disease or clinical depression, has suffered a stroke, is recovering from major surgery, or is in the final stages of a terminal disease. It also covers employees who need time off to recover from the side effects of a medical treatment—including chemotherapy or radiation treatments.

However, the employee’s or family member’s health condition or medical treatment must require either an overnight stay in the hospital or a three-day absence from work. For example, a one-time health problem that is expected to require a short recovery period, such as orthodontic treatments, is not covered under the FMLA.

Also excluded are ailments not deemed to be serious health conditions—colds, flu, earaches, upset stomachs, minor ulcers, headaches other than migraines, and routine dental visits. Regimens of over-the-counter medications, bed rest, fluids, and exercise popularly ordered by doctors are not within the law’s contemplation. Nor does the law cover requests for time off for routine physical, eye, or dental exams—except when required to diagnose a serious illness. In fashioning the law, Congress presumed, rightly or wrongly, that most workplace sick days or personal leave policies would be sufficient to cover these situations.

4. Penalties for Retaliation

By passing the FMLA, Congress intended to signal that employers must foster employees’ needs to preserve both family and job. As in other workplace laws prohibiting unfair practices, the FMLA prohibits employers from demoting or firing an employee solely because he or she took a legally sanctioned leave.

The law also provides that an employer may not use either a carrot or a stick in handling leave requests. That is, an employee may not be promised a raise or promotion as an inducement not to take a leave; nor may an employee be denied a raise or promotion because of taking a leave.

5. Returning to Work

When you return to work after taking a family leave, the FMLA requires that you be returned to your old position or to an equivalent one.

This is a strict requirement and, according to the Department of Labor, the single provision employers violate most often. Congress has intimated that it is not enough that the position to which you are returned be “comparable” or “similar.” It has stated that the “terms, conditions, and privileges”—including the security of the position within the company—must be the same as the previous position.

6. If You Do Not Return to Work

An interesting twist in the law provides that if an employee does not return to work after an FMLA-sanctioned leave, the employer may seek return of the benefits paid while he or she was away.

Although it has not yet been questioned in court, this recapture provision seems to be a mistake in the law, as it enables employers to set off benefit amounts from an employee’s final paycheck or from a severance award. However, the setoff most often involves health insurance premiums, which the employer usually pays directly to the insurer.

7. Enforcing Your Rights

You must file a claim under the FMLA within two years after an employer violates the Act—or within three years if the violation is willful. Since the law is fairly new, it is still unclear what conduct will be considered willful, but retaliation is likely to be such an offense.

As mentioned, employers found to violate the FMLA may be liable for a number of costs and benefits, including:

wages, salary, employment benefits, or other compensation an employee has lost
the cost of providing up to 12 weeks of care for a baby or ill family member
reasonable attorneys’ and expert witness fees, and
interest on the amounts described above.

The employee may also win the right to be promoted or reinstated to a particular job.

The FMLA is now enforced by the U.S. Department of Labor, much the same as the Fair Labor Standards Act, which controls work hours and wages. If you have specific questions about the FMLA, contact the Department of Labor at 866-487-2365. Or check the materials on the Department’s website, at www.dol.gov.

Individual Health Insurance

2009-01-31T12:10:00.000-08:00

Even if your state does not have a law that gives you the right to continue group health care coverage after employment ends, it may have a law that requires health insurance companies to offer you the option of converting your group policy to individual coverage.

Individual coverage typically is much more expensive than group coverage—and the coverage limits are usually much lower than those offered under group coverage. For example, a group health insurance policy often will not have any limit on total benefits paid during your lifetime, while individual coverage often limits total lifetime benefits to $500,000. However, laws that give you the right to convert to individual health coverage usually do not require you to lose your job to be eligible.

If your employer cancels your group health care coverage but continues to employ you—an increasingly common situation—these laws can give you the right to convert to individual coverage until you can find a better insurance deal or a job with better health insurance benefits. You can usually find the laws guaranteeing you the right to convert group health insurance coverage to individual coverage among the statutes governing your state’s insurance industry. Some states have a consumer complaint section in their insurance departments that can help you with this.

Recent research reveals a sickening prognosis: We’re seeing the most rapid rise in health care costs in more than a decade—with a current price tag of about $1.3 trillion.

According to a health insurance trade group, America’s Health Insurance Plans (AHIP), the fingers of blame point in a number of directions, including the health care and drug industries, government—and consumers who want expensive care and more of it. AHIP maintains that spending on health care costs is speeding up at a far faster rate than the rest of the economy for a number of reasons:

Americans are demanding more health services and use them more frequently. While this can translate to longer, healthier lives, it also increases health care spending.

People over 50 use twice as much health care as those in their 20s—and almost four times as much by the time they hit 60. So, as the population ages, the cost of health care rises.

Many of the state-of-the art technologies in vogue and in demand are also expensive to buy, maintain, and operate—significantly increasing costs.

Hospitals are spending more, too—and because more of them are organized as networks, they have more power to bargain on the prices they charge.

Spending on prescription drugs is rising at a double-digit rate—weighing in at $212 billion in 2004. The current craze of advertising directly to consumers puts added pressure on doctors to prescribe what patients request rather than costeffective alternatives.

State and federal government keep passing new legal mandates requiring insurers to cover an increasing variety of services and items—not always in keeping with consumers needs and preferences, but at a greater expense to all.

What you can do to help control the cost of health insurance premiums: Foremost, mind the commonsense urgings to take care of yourself by exercising, eating a balanced diet, maintaining the correct weight, and not smoking. Make sure all the information you give to medical providers is correct and current—and review bills and statements for accuracy. Be aware of public policies that influence the cost of health care—and agitate against those you feel would raise it unnecessarily.

Source: America’s Health Insurance Plans, www.ahip.org, 2005

Coverage for Former Employees | Health Insurance

2009-01-08T22:30:00.000-08:00

A federal workplace law, the Consolidated Omnibus Budget Reconciliation Act, or COBRA (29 U.S.C. § 1162), requires your employer to offer you—and your spouse and dependents—continuing insurance coverage in either of the following situations:

You lose insurance coverage because your number of work hours is reduced.

You lose your job for any reason other than gross misconduct. Because the law is still relatively new and was a drastic change from Business as Usual, the courts are still grappling with the question of how egregious the workplace behavior must be to qualify as gross misconduct. So far, courts have ruled that inefficiency, poor performance, negligence, or errors in judgment on the job are not enough. There must be some deliberate, wrongful violations of workplace standards to qualify as gross misconduct.

COBRA was intended to extend access to group health insurance coverage to people who would otherwise be totally unprotected—and unlikely to be able to secure coverage on their own. The law applies to all employers with 20 or more employees. Under the law, employers need only make the insurance available; they need not pay for it. Employers may charge up to 102% of the base premium for continued coverage—the extra 2% thrown in to cover administrative costs.

Those covered under COBRA include:

all individuals who are or were provided insurance coverage under an employer’s group plan, and

those individuals’ beneficiaries—who typically include a spouse and dependent children.

1. Continuing Coverage
Qualified employees and former employees may elect to continue coverage up to 18 months after they quit or are fired or get laid off, or after a reduction in hours that makes them ineligible for coverage. Those who become disabled, however, can get COBRA coverage for 29 months—until Medicare payments typically kick in.

No one can choose to enroll in an insurance plan upon becoming ineligible for workplace coverage. COBRA extends only to those already enrolled when their health insurance coverage ceases.

In addition, COBRA provides that covered individuals must be given the right to convert to an individual policy at the end of the continuation period—although that coverage is usually significantly more expensive.

2. Coverage for Dependents
Beneficiaries or dependents may also elect to continue coverage for 18 months.

However, they may opt to have coverage continued for up to 36 months if any of the following occur:

The covered employee dies.

They are divorced or legally separated from the covered employee.

A minor dependent child turns 18 or otherwise ceases to be considered a dependent under the plan.

They become disabled and eligible for Social Security disability insurance benefits.

3. Preexisting Conditions
COBRA addresses the most common health insurance bugaboo: denial of coverage for preexisting conditions.

Under COBRA, coverage must be offered regardless of any preexisting medical conditions. And, if an employee obtains new employment with coverage that contains exclusions or limitations for any such conditions, the former employer may not terminate coverage before the end of the COBRA coverage period. However, the employer may end coverage if a beneficiary such as a spouse is covered by another group health plan—as long as there is no significant gap in benefits

4. Enforcing COBRA
COBRA provides for a number of fines for employers and health insurance plan administrators who violate its requirements. However, the Act has so many complexities that no one can agree on exactly what circumstances release an employer from its requirements. And, frustratingly, there is no one place you can call to get help if you think your rights under COBRA have been violated. Parts of the law are administered by the U.S. Labor Department and other parts fall under the Internal Revenue Service—and the two agencies frequently refer COBRA complaints back and forth to each other.

If you have a COBRA-related question or complaint, you can try calling your local office of either of those agencies, but neither has a track record of actively enforcing COBRA requirements. Your employer is required to provide you with an explanation of your COBRA rights when you are enrolled in a group health care plan covering 20 or more employees. However, these materials are seldom well written or easy to understand.

In general, COBRA can be enforced only through an expensive lawsuit. That means that it typically can be used only by large groups of former employees who have been denied their rights to continue group health insurance coverage—and who can share the expense of hiring a lawyer and filing a lawsuit to enforce that right.

Coverage for Current Employees | Health Insurance

2008-12-22T22:24:00.000-08:00

No law mandates insurance coverage in every workplace. But employees can take some insurance aid and comfort from a number of state laws—and from a federal law imposing some fundamental fairness in coverage.

Caution Independent contractors need not apply. If you work as an independent contractor—a term used to describe people who are in business for themselves, such as consultants, freelancers, the self-employed, entrepreneurs, and business owners—you are covered by neither federal nor state laws that require health insurance coverage or continuation. To become insured, you must proceed on your own through the often mind-numbing process of procuring insurance—and the often bank account-draining process of paying for it. If you have questions about your work status as an independent contractor or employee, consult your local department of labor.

1. State Laws

A few states, counties, and cities now require some employers to provide health insurance coverage for some employees who work there. For example, Hawaii requires employers to provide coverage to employees earning a set amount or more per month. (Haw. Rev. Stat. § 393-11.)

In addition, some state laws require that employers who offer insurance to employees must provide certain minimum coverage. The state requirements vary considerably, but typical minimums include coverage for medical and surgical benefits, treatment of mental illness, alcoholism, and drug abuse and preventative testing such as mammograms and PAP smears. Check with your state’s health commissioner to find out whether there is any minimum mandated coverage in your area.

Some states impose additional restrictions on workplace health insurance. For example, a growing number of them make it illegal for employers to fire employees because they file a legitimate claim against their company’s health insurance.

2. The Health Insurance Portability Act

The Health Insurance Portability and Accountability Act, or HIPAA (Pub. Law 104-191), a federal law that took effect in July of 1997, makes it easier for employees to change jobs without losing insurance coverage—and to get coverage in the first place.

The law’s biggest promise is to improve the portability of health insurance coverage. But in addition, it purports to:

take aim against health care discrimination, fraud, and abuse, and

promote the use of tax-favored insurance plans.

a. Increased Portability
Group insurers now face limits when attempting to restrict enrollment because of preexisting medical conditions.

Under HIPAA, for example, pregnancy is not considered a preexisting condition—and newborns or newly adopted children cannot be excluded if they are enrolled within 30 days of birth or adoption.

The maximum amount of time a group health insurance plan, HMO, or self-insured plan may exclude someone on the basis of a preexisting condition is 12 months. This exclusion period is reduced by the amount of time an employee previously had continuous coverage through other private insurance or public insurance programs.

Insurers must offer individual coverage to a person who loses group coverage if the individual:

was continuously covered for 18 months under a group health plan

has exhausted COBRA coverage (see Section C, below), or

is ineligible for coverage through government programs such as Medicare or Medicaid.

b. Discrimination Protection
Group health plans and employers cannot deny coverage for an individual and his or her dependents based on health status, physical or mental medical condition, claims experience, genetic information, disability, or domestic violence.

The Inspector General and U.S. Attorney General are charged with establishing a program to coordinate federal, state, and local programs to control health plan fraud and abuse—and criminal penalties can now be imposed for defrauding any health benefits program.

c. Tax-favored Insurance Plans
Beefed up by the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, which became effective January 1, 2004, there are now a number of programs available with the aim of giving employees tax advantages to offset health care costs.

Health Savings Accounts. A Health Savings Account permits some workers to save for, and pay, health care expenses for themselves, a spouse, and dependents, free of taxes.

HSAs may be established by any individual who is covered by a qualified high-deductible health plan—those with an annual deductible of at least $1,000 for individuals or $2,000 for families. Contributions can be made into these accounts—by either individual employees or their employers—for the full amount of the annual deductible each year, to a maximum of $2,600 for individuals and $5,150 for families. They operate much the same way as the now-familiar Individal Retirements Accounts (IRAs) do for saving retirement money.

Medical Savings Accounts (MSAs) were the precursor to HSAs—and money put in them can be rolled over into an HSA.

Possible benefits of HSAs include:

You can claim a tax deduction for contributions you make, even if you do not itemize your deductions on Form 1040.

Interest or other earnings on the assets are tax-free.

Distributions may be tax-free if you pay qualified medical expenses.

Contributions remain in from year to year until you use them.

They are portable; they stay with you if you change employers or leave the work force.

Flexible Spending Arrangements. A Flexible Spending Arrangement (FSA), offered at an employer’s discretion, allows employees to be reimbursed for medical expenses. FSAs are usually funded through voluntary salary reduction agreements with your employer. No employment or federal income taxes are deducted from your contribution—and you are also free to contribute.

Possible benefits of an FSA include:

Your employer’s contributions can be excluded from your gross income.

No employment or federal income taxes are deducted from the contributions.

Withdrawals may be tax-free if you pay qualified medical expenses.

You can withdraw funds from the account to pay qualified medical expenses even if you have not yet placed the funds in the account.

Health Reimbursement Arrangements. A Health Reimbursement Arrangement (HRA) must be funded solely by an employer. The contribution cannot be paid through your own voluntary salary reduction agreement. Employees are reimbursed tax-free for qualified medical expenses up to a maximum dollar amount for a coverage period. An HRA may be offered with other health plans.

Possible benefits of an HRA:

You can exclude your employer’s contributions from your gross income.

Reimbursements may be tax-free if you pay qualified medical expenses.

Any unused amounts in the HRA can be carried forward for reimbursements in later years.

Note For more information on all of these tax-deferred accounts, see IRS Publication 969, Health Savings Accounts and Other Tax-Favored Health Plans, at www.irs.gov. Or order it from the IRS by calling 800-829-3676.

No Legal Right to Coverage | Health Insurance

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While many workers feel insurance coverage is an entitlement, in reality, offering health insurance to employees is purely voluntary—a matter of tradition, not law. This truth flies in the face of many firmly held beliefs about workplace benefits. But, in fact, there is no federal law that requires employers to provide or pay for health insurance coverage for all current employees, or even full-time employees. In 2004, only 61% of all working employers received health insurance coverage from their employers.

No federal legal scheme requires every employer to offer insurance coverage. However, an employer who promises to provide health insurance—in an employee manual, for example—must follow through on the promise. And benefits must be provided without discriminating against any employee or group of employees. That includes employees who are statistically more likely to incur high medical costs. For example, federal laws specifically provide that women workers and older workers must be provided with the same coverage as other workers. (See Chapter 7, Sections C and E.) One grand exception to this general rule is that many state laws now allow employers to offer health plans that offer higher premiums to smokers. (See Chapter 6, Section E.)

In recent years, some companies have discontinued or cut back on insurance coverage they offer employees, simply because of the expense. The legal rule emerging is that of evenhandedness: Employers cannot offer insurance coverage to some employees and deny it to others.

But because health insurance is a job benefit that is not regulated by law, employers are otherwise free to fashion a plan of any stripe. They may:

require employees to contribute to the cost of premiums

offer reduced reimbursement or pro rata coverage to part-time employees

limit options to one insurance plan or offer a variety of choices, or

give employees a sum of money earmarked for insurance coverage that may be applied to any chosen plan.

As anyone who has read the fine print on a health insurance policy can attest, insurers, too, place conditions on the coverage they provide. The most nettling of these limitations is on preexisting conditions. Under these provisions, if you have had a recent illness or have a chronic medical condition, you may be denied coverage, be made to wait a specific time period until your condition will be covered, or be forced to pay high premiums for specialized coverage. The greatest headway on doing away with the preexisting condition denial of coverage has been made in the federal law requiring continuing coverage for former employees. (See Section C3, below.)

Traditionally, employers that have provided health care coverage have done so through an indemnity or reimbursement plan which pays the doctor or hospital directly or reimburses the employee for medical expenses he or she has already paid.

While traditional coverage allowing employees to seek out their preferred medical provider is still widely used, a growing number of employers today provide coverage through the alternatives of a health maintenance organization (HMO) or a preferred provider organization (PPO).

An HMO is made up of hospitals and doctors who provide specified medical services to employees for a fixed monthly fee. Within the HMO service area, covered employees must use the HMO hospitals and doctors unless it’s an emergency or they receive permission to go elsewhere.

A PPO is a network of hospitals and doctors who agree to provide medical care for specified fees. Often the network is put together by an insurance company that also administers it. Employees usually can choose between using the network’s hospitals and doctors or going elsewhere.

There are two main categories of employee health insurance: coverage for current employees and coverage for former employees.

Filing a Complaint or Lawsuit (wages)

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Enforcing Your Right to Be Paid Fairly
Your first step in enforcing your right to be paid fairly should be to decide whether your complaint involves a violation of a law or is simply a matter of disagreement or misunderstanding between you and your employer.

If, for example, your employer refused to pay you time and a half for five hours of overtime that you worked, then the issue would be covered by the FLSA. But if you had been working under the impression that you would get a raise every year—a matter not covered by the FLSA—and your employer will not give you one, then the issue is left for you to resolve with your employer, without the clout that a law can lend.

Once you have refined your complaint, try discussing it with your employer or former employer before filing any official action. Some companies have dispute resolution programs—usually outlined in their employee manuals—that can help you resolve a pay dispute without resorting to legal action.

Filing a Complaint or Lawsuit
If your complaint involves what you believe is a violation of the FLSA—for example, you have not been paid fairly or on time—contact your local office of the Wage and Hour Division of the U.S. Department of Labor, listed in the federal government section of the telephone directory and available on the agency’s website at www.dol.gov.

If you call, visit, or write to your local Wage and Hour Division office, workers there will take down the information you provide and transcribe it onto a complaint form. You can request one of these forms and fill it out yourself. But, since the staff members are familiar with which details are legally pertinent, they usually prefer to fill it out themselves. They will probably ask you to provide photocopies of documents relevant to your dispute, such as pay stubs.

Review the completed complaint form and attached documents to be sure they are correct and as complete as possible. If you are assigned to a staff person who seems particularly unsympathetic or unhelpful, calmly and politely ask to speak with someone else. Also, keep in mind that a huge dollop of patience is required. The process—from filing a complaint through investigation and the final outcome—typically takes from one to three years.

Once your complaint has been put together, U.S. Labor Department investigators will take over the job of gathering additional data that should either prove or disprove your complaint.

If the thought of reporting your employer to the authorities frightens you, take some comfort in knowing that Labor Department investigators must keep the identities of those who file such complaints confidential. Also, it is illegal for an employer to fire or otherwise discriminate against an employee for filing a complaint under the FLSA or for participating in a legal proceeding related to its enforcement. Many state laws also provide protection for employees who file state wage and hour complaints.

Where the federal investigators find violations of the FLSA, the action that they then take will depend upon the severity of the violations and whether or not the employer appears to have been violating the law willfully.

When the violations are severe and apparently willful, the Labor Department may ask the Justice Department to bring criminal charges against the employer. Government lawyers will handle the matter for you. If convicted, a first-time violator of the FLSA may be fined by the courts; subsequent convictions can result in both fines and imprisonment.

If the violations are not too severe, or if the Labor Department investigators feel the infractions were not willful, one of the following steps may be taken:

The Labor Department may set up and supervise a plan for your employer to pay back wages to you and anyone else injured by the violations.

The Secretary of Labor may file a lawsuit asking the court to order your employer to pay you the wages due, plus an equal amount as damages. The court may also issue an injunction or order preventing your employer from continuing the illegal behavior.

You may file your own lawsuit under the FLSA to recover the wages you’re owed, plus other damages, attorneys’ fees, and court costs. You will probably need to hire a lawyer to help with this type of lawsuit.

What Cannot Be Deducted or Withheld (Wages)

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State laws generally control what may be deducted or withheld from an individual paycheck. Commonly, only a few things are off-limits for an employer to deduct:

the value of time taken for meal periods (see Section D3, above)

the cost of broken merchandise

tools and materials used on the job

required uniforms, and

cash register shortages and losses due to theft.

The History of Payroll Withholding
The Social Security Act of 1935, a part of President Franklin D. Roosevelt’s New Deal, was the first law to sink its teeth firmly into the typical paycheck. Intended only to save industrial and commercial hourly workers of the Depression era from poverty in old age, the original Social Security program required employers to withhold a mere 1% of workers’ pay.

Since then, the Social Security Act has been amended many times. The age of eligibility has been lowered from 65 to 62, and coverage has been extended to people unable to work because of physical disabilities, government employees, self-employed people, and a number of other groups not covered by the original Act. Consequently, the amount withheld from most wages to pay for Social Security programs now is more than 7%.

Public debate is again abuzz with talk of the Social Security Act, prompted by statistics of aging and survival and what it means for the changing workforce. Baby boomers will begin retiring in less than a decade, and life expectancy is rising. By 2025, the number of people age 65 and older will grow by an estimated 74%. In contrast, the number of workers supporting the system in its current incarnation would grow by 14%, which some see as a threat to deplete its coffers completely. Sharply divided politicians are urging a potpourri of reforms, offering everything from restoring solvency with minimal changes to scrapping the system entirely.

The federal income tax, the other major cause of paycheck shrinkage, was created when the 16th Amendment to the U.S. Constitution was passed in 1913. The original federal income tax rates ranged from 1% to 7% of annual income above $3,000—a lot of money back then.

To pay for World War II, however, the government raised the income tax rates so dramatically that the tax on the top income level bracket hit a record of 94% in 1944 and 1945. The minimum income subject to taxation was lowered so that most working people were for the first time subject to some income tax.

Politicians, hoping to assuage the public angst over paying a large yearly lump sum, decided to lessen the trauma by making employers withhold the income tax, little by little, from workers’ pay each week.

By the 1970s, employees had become so accustomed to having large sums of money withheld from their pay that most states and cities—as well as nongovernment groups such as health insurance companies and pension fund managers—instituted additional with-holding programs.

Today, it is common for employees to have more than a third of their pay withheld by their employers on behalf of government, with still more withheld to finance private benefit plans.

Payroll Withholding and Deductions

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Since the end of the Depression of the 1930s, the right and responsibility of employers to withhold a portion of your pay has become a virtually undisputed part of American culture. The laws that created the income tax and Social Security programs, for which funds are withheld, typically authorize payroll with-holding to finance those programs.

But a growing number of additional deductions are now also authorized.

1. What Can Be Deducted or Withheld
In addition to Social Security and local, state, and federal taxes, an employer may also make several other deductions from minimum wages: costs of meals, housing and transportation, loans, debts owed the employer, child support and alimony, payroll savings plans, and insurance premiums. As in most other workplace laws, there are exceptions to these rules. There are often limitations on how much may be withheld or deducted from a paycheck.

a. Meals, Housing, and Transportation
Employers may legally deduct from an employee’s paycheck the “reasonable cost or fair value” of meals, housing, fuel, and transportation to and from work.

But to deduct any of these amounts from a paycheck, an employer must show that it customarily paid these expenses and that:

They were for the employee’s benefit.

The employee was told in advance about the deductions.

The employee voluntarily accepted the meals and other accommodations against minimum wage.

b. Loans
An employer that has loaned you money can withhold money from your pay to satisfy that loan. However, it is illegal to make any such deduction if it would reduce your pay to below the minimum wage.

c. Debts and Wage Garnishments
If you owe someone money and do not pay, that person might sue you and obtain a court judgment against you. If you do not pay the judgment, the creditor may try to collect by taking a portion of your paycheck until the judgment is paid in full. This is called a wage attachment or wage garnishment. Except in a few situations—student loans, child support, alimony, and taxes, which are all discussed below—a creditor must sue you and obtain a court judgment before he or she can garnish your wages.

A wage garnishment works simply. Once the creditor has a judgment, he or she delivers a copy of it to a sheriff or marshal, who in turn sends a copy to your employer. Your employer must immediately:

notify you of the garnishment

begin withholding a portion of your wages, and

give you information on how you can protest the garnishment.

In most states, the employer can also charge you a modest fee to cover the costs of garnishing your wages.

Protesting is straightforward. You file a paper with the court and obtain a hearing date. At the hearing, you can present evidence showing that your expenses are very high and that you need all of your paycheck to live on. The judge has the discretion to terminate the wage garnishment or let it remain.

A federal law, the Consumer Credit Protection Act (15 U.S.C. §§ 1673 and following), prohibits judgment creditors from taking more than 25% of your net earnings through a wage garnishment to satisfy a debt. A few states offer greater protection, however. In Delaware, for example, judgment creditors cannot take more than 15% of your wages.

The Consumer Credit Protection Act also prohibits your employer from firing you because your wages are garnished to satisfy a single debt. If two judgment creditors garnish your wages or one judgment creditor garnishes your wages to pay two different judgments, however, you can be fired. Again, some state laws offer employees stronger job protection. In Washington, for example, an employer cannot fire you unless your wages are garnished by three different creditors or to satisfy three different judgments within a year.

There are several types of statutes that prohibit employers from retaliating against an employee for being subject to a wage garnishment. (See the chart below.) They differ in how many garnishments an employee is allowed each year without retaliation.

Most state laws have a general provision protecting employees who have their wages garnished. Some states prohibit retaliation if the employee has one garnishment per year; some laws apply to more than one garnishment. To heap on a little legal intrigue, many state statutes simply do not specify whether the protection extends to one garnishment per year or to multiple garnishments for one debt or to something else. If you run up against this confusion, contact your state’s consumer protection agency for help.

Another type of anti-retribution for wage garnishment statute is one that applies to cases in which income is withheld to satisfy child support obligations. (See also Section F1e, below.) Employers may not fire employees merely because they are subject to this type of order, regardless of the quantity of garnishments.

Of course, none of these statutes prohibit firing for just cause. They only prohibit firing an employee solely because of the wage garnishment.

d. Student Loans
The federal Emergency Unemployment Compensation Act of 1991 extended unemployment insurance for Americans who are out of work. (20 U.S.C. § 1095a.) A rider to that bill authorizes the U.S. Department of Education or any agency trying to collect a student loan on behalf of the Department of Education to garnish up to 10% of a former student’s net pay if he or she is in default on a student loan.

The Department of Education does not have to sue you before garnishing your wages. But at least 30 days before the garnishment is set to begin, you must be notified in writing of:

the amount the Department believes you owe

how you can obtain a copy of records relating to the loan

how to enter into a voluntary repayment schedule, and

how to request a hearing on the proposed garnishment.

The law includes only one specific ground upon which you can object to the garnishment: that you returned to work within the past 12 months after having been fired or laid off.

e. Child Support, Medical Support, and Alimony
The federal Family Support Act of 1988 (102 Stat. § 2343) requires that all new or modified child support orders include an automatic wage withholding order. If child support is combined with alimony and paid as family support, the wage withholding applies to the payment. It is not required for orders of alimony only.

In an automatic wage withholding order, a court orders you to pay child support; then the court or your child’s other parent sends a copy of the order to your employer. At each pay period, your employer withholds a portion of your pay and sends it on to the parent who has custody. Currently, nearly 66% of the $21.2 billion a year in child support payments are collected through income with-holding by employers. In addition, medical support orders, which require noncustodial parents to include their children under their health insurance coverage, are established and enforced by state child support enforcement agencies, if necessary. A National Medical Support Notice, modeled on the standard income withholding form, works the same way as child support orders to facilitate making the health insurance deductions from paychecks.

In most states, where there is not an automatic wage attachment, employers must with-hold wages if you are one month delinquent in paying support. But an employer cannot discipline, fire, or refuse to hire you because your pay is subject to a child support wage withholding order. If an employer does discriminate against you, the employer can be fined by the state. (See the chart above for specific state law provisions.) Federal law also prohibits employers from firing, disciplining, or refusing to hire someone because he or she is subject to wage withholding to pay child support.

f. Back Taxes
If you owe the IRS and do not pay, the agency can grab most—but not all—of your wages. The amount that you get to keep is determined by the number of your dependents and the standard tax deduction to which you are entitled.

If the IRS wants your wages, it sends a wage levy notice to your employer, who must immediately give you a copy. On the back of the notice is an exemption claim form. You should fill out, sign, and return this simple form to the IRS office that issued it within three days after you receive it. Your employer should not pay anything to the IRS until you have your chance to file your exemption claim.

If you do not file the claim form, your employer must pay you only $116 per week and give the rest to the IRS. An employer who ignores the IRS wage levy notice and pays you anyway is liable to the IRS for whatever amounts were wrongly paid. Once the wage levy takes effect, it continues until either the taxes are paid in full or the collection period expires—ten years from when the taxes are assessed.

Most state and some municipal taxing authorities also have the power to seize a portion of your wages—and some act even more quickly than the IRS does when you owe back taxes. State laws vary, however, as to the maximum amount of wages that the state can take. In California, for example, the state taxing authority cannot take more than 25% of your net pay.

State Meal and Rest Breaks

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Note: The states of Alabama, Alaska, Arizona, Arkansas, District of Columbia, Florida, Idaho, Indiana, Iowa, Louisiana, Maryland, Michigan, Mississippi, Missouri, Montana, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, and Wyoming are not listed in this chart because they do not have laws or regulations on rest and meal breaks for adults employed in the private sector. Many states also exclude professional, administrative, and executive employees from these rules.

Other exceptions may apply. Check the statute or check with your state department of labor if you need more information.

California

Cal. Code Regs. tit. 8, §§ 11010, 11160; Cal. Lab. Code §§ 512, 1030

Applies to: Employers in most industries.

Exceptions: Motion picture, agricultural, wholesale baking, and household occupations.

Meal Break: 30 minutes, unpaid, after 5 hours, except when workday will be completed in 6 hours or less and employer and employee consent to waive meal break. Employee cannot work more than 10 hours a day without a second 30-minute break, except, if workday is no more than 12 hours, second meal break may be waived if first meal break was not waived.

On-duty paid meal period permitted when nature of work prevents relief from all duties and parties agree in writing.

Rest Break: Paid 10-minute rest period for each 4 hours worked or major fraction thereof; as practicable, in the middle of the work period. Not required for employees whose total daily work time is less than 3 1/2 hours.

Breastfeeding: Reasonable time to breastfeed infant or to express breast milk; paid if taken concurrent with other break time; otherwise, unpaid.

Colorado

Colo. Code Regs. § 1103-1

Applies to: Retail and service, food and beverage, commercial support service, and health and medical industries.

Exceptions: Employees in administrative and professional occupations.

Meal Break: 30 minutes, unpaid, after 5 hours of work. On-duty paid meal period permitted when nature of work prevents break from all duties.

Rest Break: Paid 10-minute rest period for each 4 hours or major fraction worked; if practical, in the middle of the work period.

Connecticut

Conn. Gen. Stat. Ann. §§ 31-51ii, 31-40w

Applies to: All employers, except as noted.

Exceptions: Employers who pay for rest breaks as described below, those with a written agreement providing other break rules, and those granted an exemption for reasons listed in statute.

Meal Break: 30 minutes, unpaid, after first 2 hours of work and before last 2 hours for employees who work 7 1/2 or more consecutive hours.

Rest Break: As alternative to meal break, a total of 30 minutes paid in each 7 1/2-hour work period.

Breastfeeding: Employee may use meal or rest break for breastfeeding or expressing breast milk.

Delaware

Del. Code Ann. tit. 19, § 707

Applies to: All employers, except as noted.

Exceptions: Employers with alternative written agreement and those granted exemptions specified in statute.

Meal Break: 30 minutes, unpaid, after first 2 hours and before the last 2 hours, for employees who work 7 1/2 consecutive hours or more.

Georgia

Ga. Code Ann. § 34-1-6

Applies to: All employers.

Breastfeeding: Reasonable unpaid break time to breastfeed infant or to express breast milk.

Hawaii

Haw. Rev. Stat. § 378-2

Applies to: All employers.

Breastfeeding: Allowed during any break required by law or collective bargaining agreement.

Illinois

820 Ill. Comp. Stat. § 140/3, § 260/10

Applies to: All employers.

Exceptions: Employees whose meal periods are established by collective bargaining agreement.

Employees who monitor individuals with developmental disabilities or mental illness, or both, and who are required to be on call during an entire 8-hour work period; these employees must be allowed to eat a meal while working.

Meal Break: 20 minutes, no later than 5 hours after the beginning of the shift, for employees who work 7 1/2 or more continuous hours.

Breastfeeding: Reasonable unpaid break time to breastfeed infant or express breast milk.

Kansas

Kan. Admin. Reg. 49-30-3(b)(2)(A)

Applies to: Employees not covered under FLSA.

Meal Break: Not required, but if less than 30 minutes is given, break must be paid.

Kentucky

Ky. Rev. Stat. Ann. §§ 337.355, 337.365

Applies to: All employers, except as noted.

Exceptions: Written agreement providing different meal period; employers subject to Federal Railway Labor Act.

Meal Break: Reasonable off-duty period close to the middle of the shift; can’t be required to take it before the third or after the fifth hour of work.

Rest Break: Paid 10-minute rest period for each 4-hour work period. Rest period must be in addition to regularly scheduled meal period.

Maine

Me. Rev. Stat. Ann. tit. 26, § 601

Applies to: Most employers.

Exceptions: Small businesses with fewer than 3 employees on duty who are able to take frequent breaks during the workday. Collective bargaining or other written agreement between employer and employee may provide for different breaks.

Meal or Rest Break: 30 minutes, unpaid, after 6 consecutive hours of work, except in cases of emergency.

Massachusetts

Mass. Gen. Laws ch. 149, §§ 100, 101

Applies to: All employers, except as noted.

Exceptions: Excludes iron works, glass works, paper mills, letterpresses, print works, and bleaching or dyeing works. Attorney general may exempt businesses that require continuous operation if it won’t affect worker safety. Collective bargaining agreement may also provide for different breaks.

Meal Break: 30 minutes, if work is for more than 6 hours.

Minnesota

Minn. Stat. Ann. §§ 177.253, 177.254, 181.939

Applies to: All employers.

Exceptions: Excludes certain agricultural and seasonal employees.

A collective bargaining agreement may provide for different rest and meal breaks.

Meal Break: Sufficient unpaid time for employees who work 8 consecutive hours or more.

Rest Break: Paid adequate rest period within each 4 consecutive hours of work to utilize nearest convenient restroom.

Breastfeeding: Reasonable unpaid break time to breastfeed infant or express milk.

Nebraska

Neb. Rev. Stat. § 48-212

Applies to: Assembly plant, workshop, or mechanical establishment.

Exceptions: Other written agreement between employer and employees.

Meal Break: 30 minutes off premises.

Nevada

Nev. Rev. Stat. Ann. § 608.019

Applies to: Employers of two or more employees.

Exceptions: Employees covered by collective bargaining agreement; exemptions for business necessity.

Meal Break: 30 minutes for 8 continuous hours of work.

Rest Break: Paid 10-minute rest period for each 4 hours or major fraction worked; as practicable, in middle of the work period. Not required for employees whose total daily work time is less than 3 1/2 hours.

New Hampshire

N.H. Rev. Stat. Ann. § 275:30-a

Applies to: All employers.

Meal Break: 30 minutes after 5 consecutive hours, unless the employer allows the employee to eat while working and it is feasible for the employee to do so.

New York

N.Y. Lab. Law § 162

Applies to: Factories, workshops, manufacturing facilities, mercantile (retail and wholesale) establishments.

Meal Break: Factory employees, 60 minutes between 11 a.m. and 2 p.m.; mercantile employees, 30 minutes between 11 a.m. and 2 p.m. If a shift starts before 11 a.m. and ends after 7 p.m., every employee gets an additional 20 minutes between 5 and 7 p.m. If a shift starts between 1 p.m. and 6 a.m., a factory employee gets 60 minutes, and a mercantile employee gets 45 minutes, in the middle of the shift. Labor commissioner may permit a shorter meal break; the permit must be in writing and posted conspicuously in the main entrance of the workplace.

North Dakota N.D. Admin. Code § 46-02-07-02(5)

Applies to: Applicable when two or more employees are on duty.

Exceptions: Waiver by employee, or other provision in collective bargaining agreement.

Meal Break: 30 minutes for each shift over 5 hours. Unpaid if employee is completely relieved of duties.

Oregon

Or. Admin. R. § 839-020-0050

Applies to: All employers except as noted.

Exceptions: Agricultural workers and employees covered by a collective bargaining agreement.

Meal Break: 30 minutes, unpaid if relieved of all duties; paid time to eat if employee cannot be relieved of duty; a 20-minute paid break, if employer can show that it is industry practice or custom.

Rest Break: Paid 10-minute rest period for each 4 hours or major fraction worked; if practical, in the middle of the work period.

Rest period must be in addition to usual meal break and taken separately; can’t be added to meal period or deducted from beginning or end of shift to reduce length of total work period.

Rest period is not required for certain solo adult employees serving the public, although they must be allowed to use rest room.

Rhode Island

R.I. Gen. Laws § 28-3-14, 23-13-2.1

Applies to: Factory, workshop, and mechanical or mercantile establishments.

Exceptions: Nighttime switchboard operators who can sleep during shift.

Meal Break: 20 minutes after 6 hours of work. Employees are not entitled to a break if shift lasts for 6 1/2 hours or less and ends by 1 p.m.; or if shift lasts for 7 1/2 hours or less and ends by 2 p.m., and employee has enough time to eat during work.

Breastfeeding: Reasonable unpaid break time to breastfeed infant or express breast milk.

Tennessee

Tenn. Code Ann. §§ 50-2-103(d), 50-1-305

Applies to: Employers with 5 or more employees.

Meal or Rest Break: 30 minutes unpaid for employees scheduled to work 6 consecutive hours or more unless work is such that there is ample time for breaks throughout the day.

Breastfeeding: Reasonable unpaid break time to breastfeed infant or express breast milk.

Vermont

Vt. Stat. Ann. tit. 21, § 304

Applies to: All employers.

Meal Break: Employees must be given reasonable opportunities to eat and use toilet facilities during work periods.

Washington

Wash. Admin. Code 296-126-092, 286-131-020

Applies to: All employers except as noted.

Exceptions: Newspaper vendor or carrier, domestic or casual labor around private residence, sheltered workshop. Separate provisions for agricultural labor.

Meal Break: 30-minute break, if work period is more than 5 consecutive hours, not less than 2 hours nor more than 5 hours from beginning of shift. This time is paid if employee is on duty or is required to be at a site for employer’s benefit. Employees who work 3 or more hours longer than regular workday are entitled to an additional half hour, before or during overtime.

Agricultural employees: 30 minutes if working more than 5 hours; additional 30 minutes if working 11 or more hours in a day.

Rest Break: Paid 10-minute rest break for each 4-hour work period, scheduled as near as possible to midpoint of each work period. Employee cannot be required to work more than 3 hours without a rest break.

Scheduled rest breaks not required where nature of work allows employee to take intermittent rest breaks equivalent to required standard.

Agricultural employees: 10-minute paid rest break for each 4 hours worked.

West Virginia

W.Va. Code § 21-3-10a; W.Va. Code St. R. § 42-5-2(2.6)

Applies to: All employers.

Meal Break: At least 20-minute break for each 6 consecutive hours worked, unless employees are allowed to take breaks as needed or to eat lunch while working.

Rest Break: Rest breaks of 20 minutes or less must be counted as paid work time.

Wisconsin

Wis. Admin. Code § DWD 274.02

Applies to: All employers.

Meal Break: Recommended but not required: 30 minutes close to usual meal time or near middle of shift. Shifts of more than 6 hours without a meal break should be avoided. If employee is not free to leave the workplace, meal period is considered paid time.

Current as of February 2005

Calculating Workhours

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When a work pay period begins and ends is determined by a law called the Portal-to-Portal Pay Act. (29 U.S.C. § 251.) This amendment to the FLSA and several other workplace laws requires that an employee must be paid for any time spent that is controlled by and that benefits the employer.

This aspect of wage and hour law has generated a tremendous number of clashes—and cases in which the courts have attempted to sharpen the definition of payable time.

Worktime for which you must be paid includes all the time you must be on duty or at the workplace. However, the courts have ruled that on-the-job time does not include the time employees spend washing themselves or changing clothes before or after work, unless a workplace requires specialized uniforms or other garb that is impractical to don off the premises, nor does it include time spent in a regular commute to the workplace.

Employers are not allowed to circumvent the Portal-to-Portal Pay Act by simply “allowing” you to work on what is depicted as your own time. You must be paid for all the time you work—voluntary or not. This issue has come up frequently in recent years because some career counselors have been advising people that volunteering to work free for a company for a month or so is a good way to find a new job. Although working for free may be legal in situations where the job being sought is exempt from the FLSA—for example, a professional fundraising position with a nonprofit organization—it is not legal when the job involved is governed by the Act. (See Section A2, above, for details on FLSA exemptions.)

For ease of accounting, employers are allowed to round off records of worktime to the nearest five-minute mark on the clock or the nearest quarter hour. But rounding off becomes illegal if it means employees will get paid for less time than they actually worked. In practice, this means that your employer will usually round your worktime up to add a few minutes each day to the time for which you are paid.

In calculating on-the-job time, most concerns focus on how to deal with specific questionable situations, such as travel time, time spent at seminars, meal and coffee breaks, waiting periods, on-call periods, and sleeping on the job.

1. Travel Time
The time you spend commuting between your home and the place you normally work is not considered to be on-the-job time for which you must be paid. But it may be payable time if the commute is actually part of the job.

If you are a lumberjack, for example, and you have to check in at your employer’s office, pick up a chainsaw, and then drive ten miles to reach the cutting site for a particular day, your workday legally begins when you check in at the office.

Even if the commute is not part of your job, circumstances may allow you to collect for the odd trip back and forth. You can claim that you should be paid for your time in commuting only when you are required to go to and from your normal worksite at odd hours in emergency situations.

2. Lectures, Meetings, and Training Seminars
Generally, if you are a nonexempt employee and your employer requires you to attend a lecture, meeting, or training seminar, you must be paid for that time—including travel time if the meeting is away from the worksite.

The specific exception to this rule is that you need not be paid if all of the following are true:

You attend the event outside of regular working hours.

Attendance is voluntary.

The instruction session isn’t directly related to your job.

You do not perform any productive work during the instruction session.

3. Meal and Break Periods
Contrary to the laws of gastronomy, federal law does not require that you be allotted or paid for breaks to eat meals.

However, many states have laws specifically requiring that employees be allowed a half hour or so in meal and rest breaks during each workday. (See the chart below.) Your employer generally does not have to pay you for meal breaks of 30 minutes or more—as long as you are completely relieved of work duties during that time. Technically, however, if your employer either requires that you work while eating—or allows you to do so—you must be paid for time spent during meals. Also, you must be paid for break periods that are less than 20 minutes.

4. Waiting Periods
Time periods when employees are not actually working but are required to stay on the employer’s premises or at some other designated spot while waiting for a work assignment are covered as part of payable time. For example, a driver for a private ambulance service who is required to sit in the ambulance garage waiting for calls must be paid for the waiting time.

5. On-Call Periods
A growing number of employers are paying on-call premiums—or sleeper pay—to workers who agree to be available to be reached outside regular worktime and respond by phone or computer within a certain period. Some plans pay an hourly rate for the time spent on-call; some pay a flat rate.

If your employer requires you to be on call but does not require you to stay on the company’s premises, then the following two rules generally apply:

On-call time that you are allowed to control and use for your own enjoyment or benefit is not counted as payable time.

On-call time over which you have little or no control and which you cannot use for your own enjoyment or benefit is payable time.

Questions of pay for on-call hours have become stickier—and more common—as a burgeoning number of technological gadgets such as cell phones, pagers, and mobile email trumpet that they can keep their owners in touch 24/7 and as more employees opt for more flexible arrangements that allow them to work out of the office.

In cases of close calls as to whether on-call time is worktime that must be compensated, courts will often perform a balancing act, weighing:

whether the worker is constrained to stay in a particular spot while on-call

the frequency of the calls received

the length of time the employee must work when called

any specific agreement as to whether the time on-call is worktime, and

6. Sleep Time
If you are required to be on duty at your place of employment for less than 24 hours at a time, the U.S. Labor Department allows you to count as payable any time that you are allowed to sleep during your shift of duty. If you are required to be at work for more than 24 hours at a time—for example, if you work as a live-in housekeeper—you and your employer may agree to exclude up to eight hours per day from your payable time as sleep and meal periods.

However, if the conditions are such that you cannot get at least five hours of sleep during your eight-hour sleep-and-eat period, or if you end up working during that period, then those eight hours revert to being payable time.

Calculating Your Pay

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To resolve most questions or disputes involving the FLSA, you must first know the regular rate of pay to which you are legally entitled.

Whether you work for hourly wages, salary, commissions, or a piece rate, the courts have ruled that your regular rate of pay typically includes your base pay plus any shift premiums, hazardous duty premiums, cost of living allowances, bonuses used to make otherwise undesirable worksites attractive, and the fair value of such things as food and lodging that your employer routinely provides as part of your pay.

Obviously, there is much room here for individual interpretation and arbitrary decisions. But the overriding concept is that everything that you logically consider to be a routine part of your hourly pay for a routine day is a part of your regular rate of pay.

The courts have often ruled that the regular rate of pay does not include contributions that an employer makes to benefit plans, paid vacations and holiday benefits, premiums paid for working on holidays or weekends, and discretionary bonuses. And some employee manuals clarify what is included in your regular rate of pay by specifying that some benefit programs are regarded by the company to be extra compensation that is not part of an employee’s regular pay.

The regular rate of pay for people who work for hourly wages is their hourly rate including the factors just mentioned.

For salaried workers, the hourly rate is their weekly pay divided by the number of hours in their standard workweek.

If you are paid a salary that covers a period longer than a week, it may be a bit trickier to compute your wage rate. Department of Labor regulations attempt to shed light on this by requiring that all salaries must be reduced to a weekly equivalent to determine the rate of pay.

If you are paid a monthly salary, for example, you can determine your weekly wage rate by multiplying your total monthly salary by 12 (the number of months in a year), then dividing that sum by 52 (the number of weeks in a year).

Rights Under the FLSA : Restrictions on Child Labor

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Minors under 18 years old may not work in any jobs that are considered to be hazardous—including those involving mining, wrecking and demolition, logging, and roofing. The Secretary of Labor defines what jobs are deemed hazardous and so out-of-bounds for young workers. To find out which jobs are currently considered hazardous for the purposes of the FLSA, call the local office of the U.S. Labor Department’s Wage and Hour Division, located in the government section of your telephone book The Department of Labor’s website, at www.dol.gov, has a listing of local offices—and also has information about child labor restrictions.

To encourage youngsters to stay in school rather than becoming beholden to the dollar too soon, there are additional restrictions on when and how long workers between ages 14 and 16 may be employed in nonhazardous jobs:

They may work no more than three hours on a school day and no more than 18 hours in a school week.

They may work no more than eight hours on a nonschool day and no more than 40 hours in a nonschool week.

During the period that starts with the day after Labor Day and ends at midnight May 31, their workday may not begin earlier than 7 a.m. or end later than 7 p.m.

From June 1 through Labor Day, their workday may not begin earlier than 7 a.m., but it can end as late as 9 p.m.

Some industries have obtained special exemptions from the legal restrictions on child labor. Youths of any age may deliver newspapers, for example, or perform in television, movie, or theatrical productions.

The farming industry has been fighting the child labor restrictions as well as the rest of the FLSA ever since the law was first proposed in the 1930s, so less-strict rules apply to child farmworkers. For example, children as young as 12 may work on their parents’ farms. And workers as young as ten years old may work for up to eight weeks as hand harvest laborers as long as their employers have obtained a special waiver from the U.S. Labor Department.

Rights Under the FLSA : Compensatory Time

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Most workers are familiar with compensatory or comp time—the practice of employers offering employees time off from work in place of cash payments for overtime. What comes as a shock to many is that the practice is illegal in most situations. Under the FLSA, only state or government agencies may legally allow their employees time off in place of wages. (29 U.S.C. § 207(o).)

Even then, comp time may be awarded only:

according to the terms of a collective bargaining unit agreement or

if the employer and employee agree to the arrangement before work begins.

When compensatory time is allowed, it must be awarded at the rate of one-and-a-half times the overtime hours worked—and comp time must be taken during the same pay period that the overtime hours were worked.

Many employers and employees routinely violate the rules governing the use of compensatory time in place of cash overtime wages. However, such violations are risky. Employees can find themselves unable to collect money due them if a company goes out of business or they are fired. And employers can end up owing large amounts of overtime pay to employees if they get caught by the labor department.

a. State Laws
Some states do allow private employers to give employees comp time instead of cash. But there are complex, often conflicting, laws controlling how and when it may be given. A common control, for example, is that employees must voluntarily request in writing that comp time be given instead of overtime pay—before the extra hours are worked. Check with your state’s labor department for special laws on comp time in your area. (See the appendix for contact information.)

b. Alternative Arrangements
Employees who value their time off over their money may feel frustrated with the letter of the law preventing them from taking comp time. If you are in this boat, you may have a few options for getting an arrangement that feels like comp time but is still within the letter of the law.

You may be allowed to take time off by rearranging your work schedule. This is legal if both of the following are true:

The time off is given within the same pay period as the overtime work.

You are given an hour and a half of time off for each hour of overtime worked.

One way is to subtract the time during a single workweek.

But you are not confined to an hour-for-hour trade. You can also take time-and-a-half pay in one week, then reduce your hours the next week so that your paycheck remains constant.

State Overtime Rules (US)

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This chart covers private sector employment only. The overtime rules summarized are not applicable to all employers or all employees. Occupations that generally are not subject to overtime laws include health care and attendant care, emergency medical personnel, seasonal workers, agricultural labor, camp counselors, nonprofits exempt under FLSA, salespeople working on a commission, transit drivers, baby sitters, and other household workers, and many others. For more information, contact your state’s department of labor and be sure to check its website, where most states have posted their overtime rules.

Alabama

No overtime provisions.

Alaska

Alaska Stat. §§ 23.10.055 and following

Time and a half after x hours per DAY: 8

Time and a half after x hours per WEEK: 40

Employment overtime laws apply to: Employers of 4 or more employees; commerce or manufacturing businesses.

Notes: Voluntary flexible work hour plan of 10-hour day, 40-hour week, with premium pay after 10 hours is permitted.

Arizona

No overtime limits for private sector employers.

Arkansas

Ark. Code Ann. §§ 11-4-211, 11-4-203

Time and a half after x hours per WEEK: 40

Employment overtime laws apply to: Employers of 4 or more employees.

Employment excluded from overtime laws: Employment that is subject to the FLSA.

Notes: Employees in retail and service establishments who spend up to 40% of their time on nonexempt work must be paid at least twice the state’s minimum wage ($572 per week).

California

Cal. Lab. Code §§ 510 and following; Cal. Code Regs. tit. 8, §§ 11010 and following

Time and a half after x hours per DAY: 8; after 12 hours, double time.

Time and a half after x hours per WEEK: 40. On 7th day: Time and a half for the first 8 hours; after 8 hours, double time.

Employment excluded from overtime laws: Computer software employees who design, develop, create, analyze, test, or modify programs using independent judgment, or who are paid at least $45.84/hour.

Notes: Alternative four 10-hour day work week is permitted, if established prior to 7/1/99. 7th day premium pay not required when employee works no more than 30 hours per week or 6 hours per day.

Colorado

Colo. Rev. Stat. § 8-13-102; 7 Colo. Code Regs. § 1103-1(4)

Time and a half after x hours per DAY: 12

Time and a half after x hours per WEEK: 40

Employment overtime laws apply to: Employees in retail and service, commercial support service, food and beverage, health and medical industries.

Connecticut

Conn. Gen. Stat. Ann. § 31-76b; Conn. Agencies Regs. § 31-62-E1(c)

Time and a half after x hours per WEEK: 40; premium pay on weekends, holidays, or 6th or 7th consecutive day.

Notes: In restaurants and hotels, time-and-a-half pay required for the 7th consecutive day of work or for hours that exceed 48 per week.

Delaware

No overtime provisions.

District of Columbia

D.C. Code Ann. § 32-1003(c); D.C. Mun. Regs. tit. 7, § 906

Time and a half after x hours per WEEK: 40

Florida

No overtime provisions.

Georgia

No overtime provisions.

Hawaii

Haw. Rev. Stat. §§ 387-1; 387-3

Time and a half after x hours per WEEK: 40. Dairy, sugar cane, and seasonal agricultural work: 48 hours per week.

Employment excluded from overtime laws: Employees earning guaranteed compensation of $2,000 or more per month.

Idaho

No state overtime rules that differ from FLSA.

Illinois

820 Ill. Comp. Stat. §§ 105/3(d), 105/4a

Time and a half after x hours per WEEK: 40

Employment overtime laws apply to: Employers of 4 or more employees.

Indiana

Ind. Code Ann. § 22-2-2-4(j)

Time and a half after x hours per WEEK: 40

Employment excluded from overtime laws: Employment that is subject to the FLSA, movie theaters, seasonal camps and amusement parks, FLSA-exempt nonprofits.

Notes: Collective bargaining agreements ratified by the NLRB may have different overtime provisions. Domestic service work is not excluded from overtime laws.

Iowa

No state overtime limits.

Kansas

Kan. Stat. Ann. § 44-1204

Time and a half after x hours per WEEK: 46

Employment excluded from overtime laws: Employment that is subject to the FLSA.

Kentucky

Ky. Rev. Stat. Ann. §§ 337.050, 337.285

Time and a half after x hours per WEEK: 40

Employment excluded from overtime laws: Retail, hotel, and restaurant businesses.

Notes: 7th day, time and a half.

Louisiana

No overtime provisions.

Maine

Me. Rev. Stat. Ann. tit. 26, § 664(3)

Time and a half after x hours per WEEK: 40

Employment excluded from overtime laws: Auto mechanics, parts clerks, and salespersons; hotels, motels, and restaurants; canning, freezing, packing, and shipping produce and perishable foods.

Notes: Employee cannot be required to work more than 80 hours of overtime in any 2-week period.

Maryland

Md. Code Ann., [Lab. & Empl.] § 3-420

Time and a half after x hours per WEEK: 40; 48 hours for bowling alleys and residential employees caring for the sick, aged, or mentally ill in institutions other than hospitals; 60 hours for agricultural work.

Massachusetts

Mass. Gen. Laws ch. 151, § 1A

Time and a half after x hours per WEEK: 40

Employment excluded from overtime laws: Agriculture, farming, fishing; hotel, motel, or restaurant; seasonal workers less than 5 months; hospital, nursing home, or rest home; public transit.

Notes: Sunday or holiday: Time and a half as overtime unless already paid that rate as part of regular compensation.

Michigan

Mich. Comp. Laws §§ 408.382 and following

Time and a half after x hours per WEEK: 40

Employment overtime laws apply to: Employers of 2 or more employees.

Employment excluded from overtime laws: Employees not subject to state minimum wage laws.

Minnesota

Minn. Stat. Ann. § 177.25

Time and a half after x hours per WEEK: 48

Mississippi

No overtime provisions.

Missouri

Mo. Rev. Stat. §§ 290.500 and following

Time and a half after x hours per WEEK: 40; 52 hours for seasonal amusement or recreation businesses.

Employment excluded from overtime laws: Employment that is subject to the FLSA; retail or service business with gross annual sales or contracts of less than $500,000.

Montana

Mont. Code Ann. §§ 39-3-405 and following

Time and a half after x hours per WEEK: 40; 48 hours for students working seasonal jobs at amusement or recreational areas.

Nebraska

No overtime provisions.

Nevada

Nev. Rev. Stat. Ann. § 608.018

Time and a half after x hours per DAY: 8

Time and a half after x hours per WEEK: 40

Employment excluded from overtime laws: Businesses with a gross annual sales volume of less than $250,000.

Notes: Employer and employee may agree to flextime schedule of four 10-hour days.

New Hampshire

N.H. Rev. Stat. Ann. § 279:21(VIII)

Time and a half after x hours per WEEK: 40

Employment excluded from overtime laws: Employees covered by the FLSA; employees in amusement, seasonal, or recreational business open 7 months or less a year.

New Jersey

N.J. Stat. Ann. §§ 34:11-56a(4) and following

Time and a half after x hours per WEEK: 40

Employment excluded from overtime laws: June to September: Summer camps, conferences, and retreats operated by nonprofit or religious groups.

New Mexico

N.M. Stat. Ann. § 50-4-22(C)

Time and a half after x hours per WEEK: 40

New York

N.Y. Lab. Law §§ 160(3), 161; N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2

Time and a half after x hours per WEEK: 40 for nonresidential workers; 44 for residential workers.

Employment excluded from overtime laws: Same exemptions as FLSA.

North Carolina

N.C. Gen. Stat. §§ 95-25.14, 95-25.4

Time and a half after x hours per WEEK: 40; 45 hours a week in seasonal amusement or recreational establishments.

Employment excluded from overtime laws: Employment that is subject to the FLSA.

North Dakota

N.D. Admin. Code § 46-02-07-02(4)

Time and a half after x hours per WEEK: 40; 50 hours per week, cab drivers.

Employment excluded from overtime laws: Computer professionals who design, develop, create, analyze, test, or modify programs using independent judgment or who are paid at least $27.63/hour.

Ohio

Ohio Rev. Code Ann. § 4111.03

Time and a half after x hours per WEEK: 40

Employment overtime laws apply to: Employers who gross more than $150,000 a year.

Oklahoma

No state overtime provisions.

Oregon

Or. Rev. Stat. §§ 653.261, 653.265

Time and a half after x hours per WEEK: 40

Notes: Time and a half required after 10 hours a day in canneries, driers, packing plants, mills, factories, and manufacturing facilities.

Pennsylvania

43 Pa. Cons. Stat. Ann. § 333.104(c); 34 Pa. Code § 231.41

Time and a half after x hours per WEEK: 40

Rhode Island

R.I. Gen. Laws §§ 28-12-4.1 and following, 5-23-2(h)

Time and a half after x hours per WEEK: 40

Notes: Time and a half for Sunday and holiday work is required for most retail businesses (these hours are not included in calculating weekly overtime).

South Carolina

No overtime provisions.

South Dakota

No overtime provisions.

Tennessee

No overtime provisions.

Texas

No overtime provisions.

Utah

No overtime provisions.

Vermont

Vt. Stat. Ann. tit. 21, §§ 382, 384(b); Vt. Code R. 24 090 001

Time and a half after x hours per WEEK: 40

Employment overtime laws apply to: Employers of 2 or more employees

Employment excluded from overtime laws: Retail and service businesses if 75% of annual sales not for resale; hotels, motels, restaurants; transportation workers exempt under FLSA.

Virginia

No overtime provisions.

Washington

Wash. Rev. Code Ann. § 49.46.130

Time and a half after x hours per WEEK: 40

West Virginia

W. Va. Code §§ 21-5c-1(e), 21-5c-3

Time and a half after x hours per WEEK: 40

Employment overtime laws apply to: Employers of 6 or more employees at one location

Employment excluded from overtime laws: Employees that are subject to the FLSA.

Wisconsin

Wis. Stat. Ann. §§ 103.01, 103.03; Wis. Admin. Code DWD 274.01 and following

Time and a half after x hours per WEEK: 40

Employment overtime laws apply to: Manufacturing, mechanical, or retail businesses; beauty parlors, laundries, restaurants, hotels; telephone, express, shipping, and transportation companies.

Wyoming

No overtime provisions.

Rights Under the FLSA : Pay for Overtime

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The FLSA does not limit the number of hours an employee may work in a week—unless the employee is a minor. But it does require that any covered worker who works more than 40 hours in one week must be paid at least one and one-half times his or her regular rate of pay for every hour worked in excess of 40.

There is no legal requirement under the FLSA that workers must receive overtime pay simply because they worked more than eight hours in one day (although a few states require it). Nor is there anything that requires a worker to be paid on the spot for overtime. Under the FLSA, an employer is allowed to calculate and pay overtime by the week—which can be any 168-hour period made up of seven consecutive 24-hour periods.

It is custom, not law, that determines that a workweek begins on Monday. However, the FLSA requires consistency. An employer cannot manipulate the start of the workweek to avoid paying overtime.

Also, because of the nature of the work involved, common sense—and the law—both dictate that some jobs are exempt from the overtime pay requirements of the FLSA.

The most common of these jobs include:

commissioned employees of retail or service establishments

some auto, truck, trailer, farm implement, boat, or aircraft workers

railroad and air carrier employees, taxi drivers, certain employees of motor carriers, seamen on American vessels, and local delivery employees

announcers, news editors, and chief engineers of small nonmetropolitan broadcasting stations

domestic service workers who live in their employer’s residence

employees of motion picture theaters, and

farmworkers.

And, finally, some employees may be partially exempt from the Act’s overtime pay requirements. The most common of this hybrid type is an employee who works in a hospital or residential care establishment who agrees to work a 14-day work period. However, these employees must be paid overtime premium pay for all hours worked over eight in a day or 80 in the 14-day work period, whichever is the greater number of overtime hours.

In addition to the FLSA overtime provisions, a number of state laws also define how and when overtime must be paid. Some states measure overtime on a daily, rather than weekly, basis. In these states, workers who put in more than eight hours a day are generally entitled to overtime, even if they work a total of 40 or fewer hours in a week. The chart that follows summarizes state overtime rules for private employers. Note that if the federal and state law conflict, your employer must obey the stricter law—that is, the law that provides the most expansive rights to you.

Some employers have tried to skirt the overtime pay requirements by labeling part of the pay received as a bonus. In fact, bonuses have a strict legal definition, being reserved only for money paid in addition to wages because of some extra effort you have made on the job, as a reward for loyal service, or as a gift.

While the term bonus has a grand ring to it, be skeptical if you receive one too often. And take the time to do some math to discover whether the bonus is an apt description for the sum you receive—or a ploy to circumvent the laws requiring overtime pay.

Rights Under the FLSA : Equal Pay for Equal Work

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Men and women who do the same job, or jobs that require equal skill and responsibility, must be compensated with equal wages and benefits under a 1963 amendment to the FLSA called the Equal Pay Act. (29 U.S.C. § 206.) Be aware, however, that some payment schemes that may look discriminatory at first glance do not actually violate the Equal Pay Act. The Act allows disparate payments to men and women if they are based on:

seniority systems

merit systems

systems measuring earnings by quantity or quality of production, such as a piece goods arrangement, or

any factor other than sex—for example, salary differentials that stem from unequal starting salaries based on differences in experience levels.

Although the Equal Pay Act basically covers the same employers and employees as the rest of the FLSA, there is one important difference: The Equal Pay Act also protects against discriminatory pay arrangements for executive, administrative, and professional employees—including administrators and teachers in elementary and secondary schools.

Rights Under the FLSA : Minimum Wage

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The FLSA guarantees a number of rights, primarily aimed at ensuring that workers get paid fairly for the time they work. (See Sections G and H, below, for an explanation of how to take action for FLSA violations.)

Minimum Wage

Employers must pay all covered employees not less than the minimum wage—currently set at $5.15 an hour.

Some states have established a minimum wage that is higher than the federal one—and you are entitled to the higher rate if your state allows for one. Employers not covered by the FLSA, such as small farm owners, are required to pay all workers the state minimum wage rate. (See “State Minimum Wage Laws for Regular and Tipped Employees” in Section E, below.)

The FLSA does not require any specific system of paying the minimum wage, so employers may base pay on time at work, on piece rates, or according to some other measurement. In all cases, however, an employee’s pay divided by the hours worked during the pay period must equal or exceed the minimum wage.

Many employers either become confused by the nuances and exceptions in the wage and hour law—or they bend the rules to suit their own pocketbooks. Whatever the situation, you would do well to double check your employer’s math. A few simple rules distilled from the law may help.

Hourly. Hourly employees must be paid minimum wage for all hours worked. Your employer cannot take an average—or pay you less than minimum wage for some hours worked and more for others.

Fixed rate or salary. Employees paid at a fixed rate can check their wages by dividing the amount they are paid in a pay period by the number of hours worked. The resulting average must be at least minimum wage.

Commissions and piece rates. Your total pay divided by the number of hours you worked must average at least the minimum hourly wage rate.

a. Form of Pay
Under the FLSA, the pay you receive must be in the form of cash or something that can be readily converted into cash or other legal forms of compensation, such as food and lodging. Your employer cannot, for example, pay you with a coupon or token that can be spent only at a store run by the employer. Employee discounts granted by employers do not count toward the minimum wage requirement.

b. Pay for Time Off
Neither the minimum wage section nor any other part of the FLSA requires employers to pay employees for time off, such as vacation, holidays, or sick days. Although most employers provide full-time workers some paid time off each year, the FLSA covers payment only for time on the job.

However, some state laws mandate that employees get paid time off for jury duty (see Section E2, below), for voting (see Section E3, below) and for family and medical leave. And most state laws provide that, if employers offer paid vacation days off, employees are entitled to be paid for the portion they have already earned when they quit or are fired.

c. Tips
When employees routinely receive a minimum amount in tips as part of their jobs—commonly, $20 to $30 per month as set out in state law—their employers are allowed to pay less than the minimum wage and credit the tips received against the minimum wage requirement. However, the employee’s hourly wage plus the tips the employee actually earns must add up to at least the minimum wage—or the employer has to make up the difference. (Under federal law, an employer can pay as little as $2.13 an hour, as long as the employee earns at least $30 in tips per month; some states have different rules, summarized in the chart in Section E1, below. (See Section B3b, below, for more on tips as wages.) Also, the employee must be allowed to keep all of the tips he or she receives.

d. Commissions
When people are paid commissions for sales, those commissions may take the place of wages. However, if the commissions do not equal the minimum wage, the FLSA requires the employer to make up the difference.

The Fair Labor Standards Act (Wages and Hours)

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The most important and most far-reaching law guaranteeing a worker’s right to be paid fairly is the federal Fair Labor Standards Act, or FLSA. (29 U.S.C. §§ 201 and following.) The FLSA:

efines the 40-hour workweek

establishes the federal minimum wage

sets requirements for overtime, and

places restrictions on child labor.

Basically, the FLSA establishes minimums for fair pay and hours—and it is the single law most often violated by employers. An employer must also comply with other local, state, or federal workplace laws that set higher standards. So, in addition to determining whether you are being paid properly under the FLSA, you may need to check whether the other laws discussed in this chapter also apply to your situation.

The FLSA was passed in 1938 after the Depression, when many employers took advantage of the tight labor market to subject workers to horrible conditions and impossible hours. One of the most complex laws of the workplace, the FLSA has been amended many times. It is full of exceptions and exemptions—some of which seem to contradict one another. Most of the revisions and interpretations have expanded the law’s coverage by, for example:

requiring that male and female workers receive equal pay for work that requires equal skill, effort, and responsibility

including in its protections state and local hospitals and educational institutions

covering most federal employees and employees of states, political subdivisions, and interstate agencies

setting out strict standards for determining, paying, and accruing compensatory or comp time—time given off work instead of cash payments, and

establishing specific requirements for how and when employers must pay for overtime work.

1. Who Is Covered

The FLSA applies only to employers whose annual sales total $500,000 or more, or who are engaged in interstate commerce.

You might think that this would restrict the FLSA to covering only employees in large companies, but, in reality, the law covers nearly all workplaces. This is because the courts have interpreted the term interstate commerce very broadly. For example, courts have ruled that companies that regularly use the U.S. mail to send or receive letters to and from other states are engaged in interstate commerce. Even the fact that employees use company telephones or computers to place or accept interstate business calls or take orders has subjected an employer to the FLSA.

2. Who Is Exempt

A few employers, including small farms—those that use relatively little outside paid labor—are explicitly exempt from the FLSA.

In addition, some employees are exempt from FLSA requirements, such as pay for overtime and minimum wages, even though their employers are covered.

Exemption and partial exemption from the FLSA cuts both ways. For employees who are exempt, the often-surprising downside is that they are generally not entitled to wage extras such as overtime and compensatory time. The upside is that, at least theoretically, exempt employees are paid a salary that is handsome enough to compensate them for the extra duties and responsibilities they have taken on as part of their jobs. In addition, the paychecks of the exempt can be docked only for complete days of absence for vacation, personal business, illness, or partial initial or final weeks of employment.

Employers who attempt to have it both ways—for example, by denying workers overtime by claiming they’re exempt but docking them for tardiness or time away for an occasional errand—risk violating wage and hour laws.

a. Executive, Administrative, and Professional Workers
This is the most confusing and most often mistakenly applied broad category of exempt worker.

Above all, bear in mind that you are not automatically exempt from the FLSA solely because you receive a salary; the work you do must be of a certain type as well.

The Department of Labor, not renowned for issuing succinct or comprehensible regulations, attempts some additional guidance on what type of work these employees must perform to qualify as exempt.

Executive exemption. The requirements for an exempt executive worker are most rigorous. He or she must:

manage other workers as the primary job duty

direct the work of two or more full-time employees

have the authority to hire, fire, discipline, promote, and demote others or make recommendations about these decisions, and

earn a salary of at least $455 per week. Employees who own at least 20% of the business are exempt only if they are “actively engaged” in its management.

Administrative exemption. An administrative employee generally must:

primarily perform office or nonmanual work directly for company management or administration

primarily use their own discretion and judgment in work duties, and

earn a salary of at least $455 weekly.

Professional exemption. To qualify as an exempt professional, an employee must:

perform work requiring invention, imagination, originality, or talent in a recognized creative field—such as music, writing, acting, and the graphic arts, or

perform work requiring advanced knowledge—work that is predominantly intellectual, requires a prolonged course of instruction, and requires the consistent exercise of discretion and judgment, such as law; medicine; theology; accounting; actuarial computation; engineering; architecture; teaching; various types of physical, chemical, and biological sciences; and pharmacy, and

earn a salary of at least $455 per week—although doctors, lawyers, teachers, and many computer specialists need not meet this minimal earning requirement.

Highly compensated employees. Employees who perform office or nonmanual work and are paid total annual compensation of $100,000 or more—which must include at least $455 per week paid on a salary or fee basis—are exempt from the FLSA if they regularly perform at least one of the duties of an exempt executive, administrative, or professional employee as described earlier.

Common problems. The Department of Labor has tagged a number of problems that commonly come up relating to the exemption for executive, administrative, and professional workers. The top contenders include workplaces in which:

There is no formal sick leave policy, but salaried workers are docked for time missed due to illness.

Allegedly exempt workers are paid less than full salary each week.

Employees deemed exempt perform nearly exclusively routine work that has no bearing on setting management policies.

Exempt employees with scholastic degrees perform exclusively unprofessional, unrelated work.

Acquired job skills are confused with the need to use independent judgment and discretion.

Salaried employees are all labeled exempt, without regard to actual work duties or the percentage of time spent on them.

Note If you do not fit squarely within a particular definition of an exempt employee, following the nuances and semantic turns can be flummoxing. For more help, go to the Department of Labor’s website at www.dol.gov or seek guidance from the DOL’s toll-free helpline at 866-487-9243.

b. Outside Salespeople
An outside salesperson is exempt from FLSA coverage if he or she:

regularly works away from the employer’s place of business, and

makes sales or obtains orders or contracts for services or facilities.

Typically, an exempt salesperson will be paid primarily through commissions and will require little or no direct supervision in doing the job. And, under the law, outside sales do not include those made by mail, by telephone, or over the Internet.

c. Computer Specialists
This exemption applies to computer systems analysts, computer programmers, software engineers, and or other similarly skilled workers in the computer field who are compensated either on a salary or fee basis at a rate not less than $455 per week or not less than $27.63 an hour.

If you work in such circles, you may well know who you are. But the law specifically requires that an exempt computer specialist’s primary work duties must involve:

applying systems analysis techniques and procedures—including consulting with users to determine hardware, software, or system functional specifications

designing, developing, documenting, analyzing, creating, testing, or modifying computer systems or programs, including prototypes, based on and related to user or system design specifications

designing, documenting, testing, creating, or modifying computer programs related to machine operating systems, or

a combination of these duties.

d. Miscellaneous workers
Several other types of workers are exempt from the minimum wage and overtime pay provisions of the FLSA. The most common include:

employees of seasonal amusement or recreational businesses

employees of local newspapers having a circulation of less than 4,000

seamen on foreign vessels

newspaper delivery workers

workers on small farms, and

personal companions and casual babysitters. Officially, domestic workers—housekeepers, child care workers, chauffeurs, gardeners—are covered by the FLSA if they are paid at least $1,000 in wages from a single employer in a year, or if they work eight hours or more in a week for one or several employers. For example, if you are a teenager who babysits only an evening or two each month for the neighbors, you probably cannot claim coverage under the FLSA; a full-time au pair would be covered.

Considering Legal Action

2008-07-13T04:05:00.000-07:00

Wipe the dollar signs from your eyes. While it’s true that some workers have won multimillion dollar judgments against their employers, it’s also true that such judgments are very few and very far between. There are several things to think about before you decide to launch a no-holds-barred legal challenge to your firing or wrongful workplace treatment.

Evaluate your motives. First, answer one question honestly: What do you expect to gain by a lawsuit? Are you angry, seeking some revenge? Do you hope to teach your former employer a lesson? Do you just want to make your former employer squirm? None of these provides a strong basis on which to construct a lawsuit. If an apology, a letter of recommendation, or a clearing of your work record would make you feel whole again, negotiate first for those things.

You will need good documentation. As this book stresses again and again, the success of your claim or lawsuit is likely to depend upon how well you can document the circumstances surrounding your workplace problem. If your employer claims you were fired because of incompetence, for example, make sure you can show otherwise by producing favorable written performance reviews or evidence that your employer circumvented the company’s disciplinary procedures before firing you.

Before you discuss your case with a lawyer, look closely at your documentation, and try to separate the aspects of your problem that you can prove from those you merely suspect. If you cannot produce any independent verification of your workplace problem, you will be in the untenable position of convincing a judge or jury to believe your word alone.

Taking action will require time and effort. You can save yourself some time and possibly some grief by using this book to objectively analyze your job loss or problem. If possible, do it before you begin talking with a lawyer about handling your case. Once again, the keys to most successful wrongful discharge lawsuits are good documentation and organized preparation—both of which must come from you.

Be mindful of the expense. Because many challenges to workplace problems are legal longshots, lawyers who specialize in this type of case often refuse to handle them. In fact, these days, many originally well-meaning employment lawyers have switched to where the money is: They represent employers.

So your initial search for legal help is likely to be frustrating. And, if you do find a lawyer willing to take your case, you will probably have to pay dearly. If you hire a lawyer with expertise in wrongful discharge lawsuits and your case is less than a sure win, you can expect to deposit several thousands of dollars to pay for the lawyer’s time if your lawsuit fails, plus thousands more to cover other costs.

2008-07-01T09:29:00.000-07:00

Documenting the Problem
Most employers now embrace the workplace mantra reinforced by thousands of court cases: Document, document, document. If your good working situation has gone bad—or you have recently been fired—you, too, must heed the call: Document all that happened. You are nowhere, legally, without evidence of how and when things went wrong.

A little bit of workplace paranoia may later prove to be a healthy thing. Even if everything seems fine now, take the extra seconds to create a paper trail. Collect in one place all documents you receive on the job: initial work agreements, employee handbooks, management memos, performance reviews. To be safe, keep your file at home, away from the office.

If you have what seems to be a valid complaint, it is crucial to gather evidence to bolster your claim. From the start, beware of deadlines for filing specific types of legal claims. The deadlines may range from a few weeks to a few years but will likely signal that you have to act quickly.

Caution Watch what you grab. While it’s true that you are in the best position to gather evidence while you are still working, you must be wary of what you take in hand. Confidential information, such as evidence of the company’s finances, and other documents that the employer has clearly indicated should not be disclosed, are off limits. If you take these kinds of documents out of the workplace, that may actually become a legal ground for the company to fire you—or for a court to limit or deny your remedies for wrongful treatment you suffered while on the job.

There are several kinds of evidence you should collect as soon as possible.

Company policies. Statements of company policy, either written or verbal, which indicate arbitrary or wrongful treatment—including job descriptions, work rules, personnel pamphlets, notices, or anything else that either indicates or implies that company policy is to treat workers unfairly may be the most meaningful evidence you can amass.

Written statements by management. Statements by supervisors, personnel directors, or other managers about you are also important. Save any written statements and note when and from whom you received them. If you have not received any written reasons for a job decision you feel is discriminatory or otherwise wrongful, make a written request for a statement of the company’s reasons.

Verbal comments. In many cases, employers and their managers do not write down their reasons for making an employment decision. In such cases, you may still be able to document your claim with evidence of verbal statements by supervisors or others concerning unwritten company policy or undocumented reasons for a particular action involving your job.

Make accurate notes of what was said as soon as you can after the statement is made. Also note the time and place the statement was made, who else was present, and the conversation surrounding it. If others heard the statement, try to get them to write down their recollections, and have them sign that statement. Or have them sign your written version of the statement, indicating that it accurately reflects what they heard.

Talking It Over with Your Employer

2008-06-26T09:25:00.000-07:00

Analyzing Your Options
If something is amiss in your workplace and you have turned to watercooler wisdom, commuter train tales, or locker room skinny, you may have come away with the same urging: Sue.

For most people, that is bad advice. The courtroom is usually the worst place to resolve workplace disputes. Most of them can be handled more efficiently and much more effectively in the workplace itself—through mediation, arbitration or, most often, by honest conversation.

If you have suffered an insult, an injury, or a wrong at work, you are probably feeling angry or hurt. If you have lost your job, you may be hurting financially, too. All of this is likely to cloud your ability to make well-reasoned decisions. So go slowly. Decide what you want to gain. If an apology from your employer would suffice, save yourself the time and expense of filing a legal action.

Do not overlook the obvious: First try talking over your workplace problem with your employer. An intelligent discussion can resolve most wrongs—or at least get your differences out on the table. Most companies want to stay within the law and avoid legal tangles. So the odds are that your problem is the result of an oversight, a misunderstanding, or a lack of legal knowledge.

Here are a few tips on how to present your concerns to your employer or former employer:

Know your rights. The more you know about your legal rights in the workplace—to be paid fairly and on time, to do your job free from discrimination and retaliation, to labor in a safe and healthy place—the more confident you will be in presenting your problem.

Specific penalties that may be imposed on employers who violate them. Your best course is probably not to sue your employer over a violation of a law requiring paid time off for jury duty or a single miscalculation of overtime pay. But knowing whether a particular transgression can be punished with a fine, a criminal conviction, or an order to rehire you is the kind of information that can make your employer take your complaint more seriously in the bargaining process.

Stick to the facts. Keeping your legal rights firmly in mind, write a brief summary of what has gone wrong and your recommendation for resolving the problem. It often helps to have someone who is more objective, such as a friend or family member, review the facts of your workplace problem with you and discuss possible approaches to resolving it.

Check the facts again. The human memory is not nearly as accurate as we like to think it is—particularly when it comes to remembering numbers and dates. Before you approach your employer with a complaint about your pay, check to be sure your math is correct. If your beef is about a discriminatory remark, be sure you can quote it verbatim. Review all of your written records to make sure you have not overlooked a past event or pivotal memo.

Do not be overly emotional. Recognize that dealing with a workplace problem can be stressful. After all, if you are like most workers, you spend about half of your waking hours on the job. But you also know friends, relatives, and acquaintances who are out of work—and who are having hard times finding new jobs. Acknowledge that these pressures of time and money can make it more difficult to deal with a workplace problem. Then vow to proceed as calmly and rationally as possible.

Do not tolerate abuse. If your job is on shaky ground, try not to jeopardize it further by losing your temper and getting fired as a result. A calm presentation of a complaint is always better than an emotional confrontation. Remember the common wisdom that it is easier to find a new job while you still have your old one. At the very least, it’s easier to blaze a new career trail if you leave no muddy tracks behind you.

Be discreet. Discussions of workplace problems are often very personal and should take place privately—not in front of coworkers. Employment problems can be divisive not only for those involved, but for an entire workplace. You don’t want to be justly accused of poisoning the workplace atmosphere or of filling it with disgruntled workers forming pro and con camps. Ask for an appointment to discuss your complaint privately with your supervisor or another appropriate manager. If you give that person a chance to resolve your problem rationally and privately, he or she will be more apt to see things your way.

Utilization Review | Health Insurance

2008-02-25T02:13:00.000-08:00

If your health insurance coverage provider has joined the swelling ranks of those who use a process called utilization review, you may get caught in the crossfire of one of the greatest workplace legal feuds on record if you become ill.

The idea behind utilization review is simple: By having an objective eye, usually an independent agency, take a look at your medical problem and approve or disapprove the things your doctor recommends, insurance companies can cut down on treatments that are unnecessary and expensive. The savings can then be passed along to the employers and employees who are finding it ever more difficult to pay for health insurance coverage.

Most physicians hate utilization review—for different reasons. Some feel the pain in their purses: Any process that prevents doctors from prescribing treatment significantly reduces the charges they can bill to your insurance company. And a number of doctors view utilization review as nettlesome bureaucratic padding—too often staffed with decision makers who know little about medical practice. But employers like utilization review. So lawyers have found a lucrative place for themselves in the middle of that opinion clash—routinely filing lawsuits on behalf of doctors, employers, and their insurance companies

Utilization Review and Insurance Coverage
Unless the legal feud over utilization review is settled, you should be particularly careful in making sure you understand what role it would play in your health care coverage if you became ill and needed to file a claim.

Here are some questions to ask to help you evaluate coverage:

Does my health insurance coverage include a provision for utilization review?

If so, who will perform the review? Will it be someone on the company’s staff? Someone on the insurance company’s staff? An outside agency?

What kind of professional credentials are required of the people who would review my doctor’s recommendations for treating me?

What methods does my health insurance coverage use to enforce its utilization review decisions? For example, some health insurance plans merely compile lists of doctors whose charges are habitually high and then try to talk them into exercising restraint. Others use more aggressive tactics, such as reducing by 25% the fees paid to doctors who fail to obtain permission from the insurance company before performing a treatment on a patient.

Do I have the option of electing to participate in a health insurance plan that doesn’t include utilization review? If so, will it cost me more to be covered by that plan?

If my doctor or I disagree with a decision made by a reviewer, would I have the option of rejecting the utilization reviewer’s decision?

Having this information is not likely to keep you completely out of the utilization review feud, but at least you will understand what is happening to you and what options you have if you get caught in it.