By Donna Ballman
As an employment lawyer who has represented employees for 25 years, I find that everyone thinks they already know their rights. After years of watching shows like The Defenders, Fairly Legaland Damages, Americans have absorbed lots of legal information. Unfortunately, most of it is wrong. Before you mouth off to your boss about your rights, I thought I'd share with you the top 10 laws most employees think exist- that don't.
1. "I was wrongfully terminated."
Maybe if you lived in Montana you'd have a point. Montana is the only state in the nation with a law saying you can only be fired for just cause. Otherwise, you live in an at-will state. That means you can be fired for any reason or no reason at all. They don't have to have a good reason. They don't even have to give a reason in most states. Boss in a bad mood? He or she can fire you. HR didn't like the shoes you wore that day? Buh-bye.
2. "I know I have the right to see my file."
Probably not, so don't go stomping into HR and making demands. No federal law requires private employers to allow employees to inspect or copy their own personnel files. Only some states require employers to allow you to look at your file and even fewer require your employer to allow you to copy items in your file. Many times, the only way you'll find out what's in your file is if you sue and you get it with a Request for Production, or if you subpoena it inunemployment or other proceedings.
3. "I demand my break right now."
Yeah, only problem with this is that no federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it's not a majority. No federal law even requires bathroom breaks, but it's probably a health issue, so OSHA might protect you if your employer denies bathroom breaks. If you're a nursing mother, you're entitled to an unpaid break to express breast milk if your employer is big enough. Some states also offer protection for nursing moms taking breaks. Lots of people get fired for insisting on breaks they're not entitled to. Don't do it.
4. "I'm working in a hostile environment."
It's pretty much your boss's job to create a hostile work environment. A hostile environment is not illegal.Workplace harassment is not illegal. Bullying is not illegal in any state. Only hostile environment or harassment due to race, age, sex, religion, national origin, disability, color, taking Family and Medical Leave, whistle blowing, or some other legally-protected status is illegal.
5. "I exercised my First Amendment rights."
If you work for a private employer, you really shouldn't have done that. Only government employees have free speech protections, and those are very limited. Otherwise, you can be fired in most states for your speech (including political speech) in the workplace or outside the workplace. You can't be fired for speaking on behalf of coworkers in order to improve work conditions or for objecting to something illegal, but be very careful to make sure you're protected before you speak out.
6. "My boss invaded my privacy."
Your boss can read your work e-mails and monitor your Internet usage at work. If your employer is going to listen into or record phone calls, there are some legal restrictions. You also have privacy rights in your medical information. There is no federal law protecting your social security number, but California and New York do offer limited protection against employers displaying your number.
7. "But this is a right to work state."
Hopefully you didn't say that right before you signed a non-compete agreement. Right to work doesn't mean your employer can't restrict your ability to work for competitors after you leave. What it means is they can't make you join a union in order to work there. Some states, but not all, are right to work states. If your supervisor tells you that signing a non-compete agreement is meaningless or that it won't be enforced, they are lying to you.
8. "I was retaliated against after I complained."
Oh no. Tell me you didn't write a long letter complaining about your boss being unprofessional or incompetent. There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or the fact that your boss is a jerk. If you do something that puts you in a legally protected category, you may be protected from retaliation. Examples would be objecting to discrimination, making a worker's comp claim, or taking Family and Medical Leave.
9. "I was discriminated against because my boss didn't like me."
If your boss is discriminating against you for being you, that isn't illegal. Favoritism, nepotism, and being obnoxious are not illegal. Discrimination based on age, pregnancy, race, sex, religion, national origin, disability, color and genetic information are illegal. In some states, other categories such as sexual orientation, gender identity, marital status, and being a domestic violence victim are protected.
10. "I not only want to sue my company -- I want to sue my boss."
As much as it may be satisfying to sue your ex-boss personally, you probably can't. Federal and many state discrimination laws, Family and Medical Leave Act (in some states the courts disagree on this), and most other employment laws simply don't allow it. One major exception is wage and hour violations. Some state discrimination laws do hold supervisors liable for violations. But what's the point? Unless they're rich, you probably won't be able to collect anyhow.
"Well that's wrong. What can I do about it?"
Since most people think these laws exist, maybe it's probably high time for them to actually be passed. E-mail your congressperson and state representative now and complain if you don't like the fact that you're not protected. Here are some places to find out how to contact your representative in Congress:
http://www.contactingthecongress.org/
http://www.congress.org
Here's a website with contact information for elected officials at the state and federal level:
http://www.usa.gov/Contact/Elected.shtml
You do have rights. Among them is the right to vote. If you don't like the law, exercise it and tell your representatives you demand some legal protections. In the meantime, don't get yourself fired by getting your legal advice from television. When in doubt, contact an employment lawyer in your state about your legal rights at work.
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