Office Legal guidelines Your Employer Could Be Violating

By Jason Wilson Last updated Dec 12, 2020

Nobody is above the law, including your boss. The National Labor Relations Act and a variety of laws oversee …

Nobody is above that Law, including your boss. The National Labor Relations Act and a number of laws overseen by the US Equal Employment Opportunity Commission protect employees from hostile work environments, discrimination, and unfair labor practices. There are also state and local regulations that employers must follow. And now, in the face of COVID-19, there are some new paid vacation legal considerations that employees should consider in the context of the recently passed Families First Coronavirus Response Act.

Davida S. Perry, managing partner at Schwartz Perry & Heller LLP law firm in New York City, says labor laws typically fall into three broad categories: human rights laws, wage and hour laws, and whistleblower laws. Read on to learn what these laws prohibit, how a hostile workplace is defined, and what to do if a manager or employee is harassing you. You will also learn what you need to know about COVID-19-related labor laws that your employer may be disregarding, why they can negatively affect you, and what you can do about it.

[See: Relaxation Exercises for When You’re About to Lose It at Work.]

Labor laws that your employer may violate

Not all labor laws apply to every company and every employee. For example, some small businesses may be exempt from certain requirements and managers may not have the same wage protection as hourly workers. In addition, state laws may vary.

In general, however, here are nine of the most common ways employers knowingly or unknowingly break labor laws.

– Use of prohibited questions on job applications.

– Insist that you cannot discuss your salary with your co-workers.

– You can’t pay overtime.

– Promising jobs for unpaid interns.

– Asking or allowing work outside of the clock.

– Classify you as an independent contractor but treat you like an employee.

– Discipline for complaints about work on social media.

– Allowing a hostile workplace.

– No paid sickness related to COVID-19.

Using Prohibited Questions on Applications

Some employers may break the law before you are even hired. The EEOC enforces laws prohibiting a dozen different types of discrimination, and in most cases employers cannot use these factors in hiring decisions or even ask about them during the interview process. This means that an application cannot ask about age, marital status, religion or pregnancy plans, among other things.

Insist that you cannot discuss your salary with your co-workers

Your boss may not want you and your co-workers to compare your salary or performance, but they can’t prohibit it. According to the NLRA, any attempt to end these discussions could be seen as an illegal attempt to prevent workers from organizing or unionizing.

You can’t pay overtime

The Law on Fair Labor Standards requires employers to pay non-exempted workers overtime if they work over 40 hours in a single work week. Some states have more restrictive laws on the books. Alaska, California, and Nevada all require overtime for those who work more than eight hours a day.

Promising jobs for unpaid interns

Companies may want to reward interns with the promise of getting a paid job at the end of the internship. However, this could lead to an employer violating federal and state minimum wage laws. “It changes the motivation of the internship,” said Eric M. Sarver, attorney and director of Eric M. Sarver’s law firm in New York City. Rather than being a learning experience for a student, the internship could be viewed as unpaid – and illegal – training time.

[See: 10 Best Low-Stress, High-Paying Jobs.]

Asking or allowing you to work around the clock

Non-exempt employees covered by the Fair Labor Standards Act may not be asked to work outside of business hours. For example, workers cannot be asked to do prep work or clean up outside of their paid shifts. Additionally, employers should be careful asking to be paid cash or off the rack. “The implication is that the employee won’t pay any taxes,” says Perry. Employers can get in hot water for not withholding payroll taxes, and they can also impose other penalties if the employee files a complaint stating that they have not been adequately compensated.

Classify you as an independent contractor but treat you like an employee

Hiring independent contractors instead of employees is one way for companies to keep costs down. This allows them to avoid paying benefits and some employment taxes. However, companies can classify workers as independent contractors if they are actually workers. “If the employer is in control of the person, he is an employee,” said Angela Reddock-Wright, labor law attorney and mediator with the Reddock Law Group in Los Angeles.

Discipline for complaint about work on social media

The NLRA gives employees a wide scope to speak publicly about their employers, including on social media. This is because attempting to restrict workers’ communication can be seen as an illegal attempt to prevent them from unionizing or organizing. “It’s not to say that an employee has carte blanche to post anything they want on social media,” says Sarver. Threats of violence, harassing behavior, and maliciously false statements can all be grounds for discipline or dismissal from the job.

Allowing a hostile workplace

An employer has an obligation to ensure that their workplace is a safe environment and that employee complaints are dealt with appropriately. Some states also require companies to provide sexual harassment training to workers or supervisors. “A lot of organizations are fiddling with this ball,” said Laurie Girand, president of I’m With Them, a nonprofit that advocates for victims of work-related sexual misconduct. Organizations can directly or indirectly discourage employees from reporting problems, and many lack a clear code of conduct for their employees.

The EEOC says that a hostile work environment is created when a person endures abusive behavior as a condition of continuing employment and the behavior is so severe and ubiquitous that a reasonable person would find it intimidating, hostile, or abusive. By this definition, a single inappropriate comment by an employee is unlikely to qualify as a hostile workplace. “If he does it 10 times, it’s different,” says Girand.

However, there are some cases where a single incident can be serious enough to legally warrant action by an employer. “It could be a public humiliation,” says Sarver. “It could be a colleague’s groping at a Christmas party.”

A hostile workplace can also extend beyond business hours. Employers are required to deal with behaviors such as: B. if a person sends harassing texts or messages to an employee in the evening. The key is that the employer must be aware of the behavior, unless it is a supervisor. In this case, a company can automatically be held responsible for the behavior.

While hostile work environments are often linked to sexual harassment, they can in fact be the result of any kind of discrimination and employers need to emphasize this to their workers. “We don’t pick people because they’re over 40,” says Perry. “We don’t choose people because they’re a different religion.”

No paid illness related to COVID-19

According to the US Department of Labor, employees are entitled to paid vacation under the FFCRA. The law requires certain employers to be responsible for ensuring that employees receive paid sick leave – or extended family / sick leave – for “certain reasons related to COVID-19”.

Under the law, employees of insured employers are entitled to two weeks of paid sick leave at either their regular pay or two-thirds of their regular pay, depending on their particular circumstances related to quarantine, COVID-19 symptoms, or the need for care for another person under Quarantine (or up to 10 weeks of paid leave for parents to look after a child whose school or carer is closed due to COVID-19). You can find detailed information on FFCRA and paid vacation rights for employees here.

Dealing with an employer who violates the law

If you are uncomfortable with an employee’s behavior or if you think your employer is violating a labor law, first contact your manager or Human Resources. “I always encourage employees to contact their employers to see if they can solve problems in-house,” says Reddock.

The next step may be to file an administrative complaint with the competent authority. Complaints about discrimination should be filed with the EEOC, suspected violations of the NLRA can be filed with the National Labor Relations Board, and wage issues can be dealt with by state employment services. Most of these agencies have online reporting options. However, it could be six months to a year or more before your matter is heard, Reddock says.

[See: How to Quit Your Job.]

Another option is to contact a private labor lawyer. These attorneys can take civil action against an employer, which can result in changes in the workplace as well as financial reimbursement. Some lawyers may offer free consultations and work on an emergency basis so you may not have up-front cost of representation.