Employee Rights Attorney
Mission Viejo, California
As an employee rights attorney, I have interviewed thousands of employees about their workplace rights. It has appeared to me that there is a general pattern of misconceptions. Here are the top ten myths at work as compared with reality.
Myth 1: “At-Will” Employment Allows an Employee to be Fired for Any Reason
This is what most employers want you to believe. In fact, most employee handbooks include specific language to this effect. You may have been required to sign an acknowledgment of such policies through the employee handbook or subsequent documentation. Historically, before employee rights laws were enacted, this myth was reality.
The “at-will” doctrine may have very limited effect. An employer simply does not have a right to fire an employee for “any reason.” It must be any “legal reason.” Even a contract acknowledging the right of the employer to fire an employee “at-will” is not valid if it is for a reason protected by state or federal law. An employer cannot fire an employee if it is based, at least in part, on discrimination, such as race, age, sex, or other protected class groups. An employer is also prohibited from retaliating against you because of a protected activity, such as whistle-blowing, jury duty, complaints about safety violation, refusal to do illegal activities, protected to medical for family leave rights or any other area that is protected by “public policy” based in statute or constitutional law.
Even though the right of the employer to fire an employee “at-will” is really limited to a contractual analysis, it is often not definite at all. Even though such doctrine may be implied, even by law, it can be rebutted by sufficient evidence and promises by the employer regarding permanency of employment or the need for “good cause” as a condition of termination. Many courts will look at longevity of employment, policies and practices of the employer regarding “cause” terminations, written policies and procedures and practices in the industry. Unless the employee handbook includes very specific language, an effective employee’s attorney can defeat the casual reference to at-will employment.
Myth 2: Overtime Compensation Does Not Apply to a Salaried Employee
Qualifications for overtime compensation is one of the most misunderstood doctrines in the workplace. Whether or not an employee is salaried is really not relevant. The key factor is the status of an employee as “exempt,” and not subject to overtime compensation rules, or “non-exempt” and subject to such rules.
State and federal rules sometimes differ. For example, California states that it will impose the law that is most favorable for the employee. Federal law states that an employee must be salaried to qualify for exempt status. This does not mean that being salaried makes you exempt. It is simply one of the requirements.
The determining points include the amount of discretion and independent judgment that must be exercised by the employee as well as whether or not there is management of at least two other employees more than fifty percent of the time. In my experience, in some industries in which employees are working extraordinary hours because they are salaried, half or more should be qualifying for overtime compensation. Anyone who has been terminated from employment and who has worked more than forty hours a week for the employer, should evaluate qualification for overtime compensation. The amount owed could exceed tens of thousands of dollars.
Additionally, this might give an employee the right to claim that the employer terminated the employee, at least in part, to avoid paying what should have lawfully been paid. This makes probably a wrongful termination claim as well.
Myth 3: Unemployment Compensation Applies to Layoffs Only
Many people think that they do not qualify for unemployment compensation because they have been fired. That simply is not the determining factor. Certainly layoffs are the traditionally means by which terminated employees obtain unemployment compensation. However, the real factor is whether or not the employee has lost the job due to their own “intentional misconduct.” This does not mean that the employee was negligent or doing a poor job. It had to be intentional and it had to be misconduct. If the employer can show that they warned an employee about a certain action and the employee subsequently intentionally violated that policy, the employer might win the battle. However, this is very difficult to do. Terminated employees should realize the strong probabilities of success with the unemployment compensation office.
Myth 4: Whistleblowers Have Few Rights
There are actually many laws, both on the federal and state level, that protect whistleblowers. Even though some states may require that the complaints be made to a government agency in order to trigger such rights, the trend of most states is to protect whistleblowers even if the employee complains solely to the company’s management. The issue then is proving that the complaint was actually made. There is less of a dispute if the complaint is done in writing.
Myth 5: Medical or Family Leave Allows for Permanent Replacement
According to the new federal laws regarding medical and family leave rights, an employer must hold your job open for a period up to three months without pay. Many states have rules that make the time period even longer. Obviously, during your absence, the employer must use temporary replacements to perform your work duties. You will have a legal claim against the employer if they turn those temporary replacements into permanent ones and deny you your job on your return.
Myth 6: Severance Pay is Required
Most everyone seems to thinks that the employer owes them at least two weeks of severance or one week for every year of employment. There is no law that requires severance pay at all. The only one that comes close to it is one that says that if an employer of a certain size closes down a facility that a certain amount of notice is required to be given and if it is not, the pay for such period must be given instead. If an employer has contractually made promises to the employees to give a certain amount of severance pay, then it needs to abide by such commitments.
Even though severance pay is not required, most smart employees will ask for it anyway. The attorney’s challenge is to increase whatever severance pay is offered and try to make it structured such that it is non-taxable.
Myth 7: Blacklisting is Difficult to Detect and Prevent
It is tough to find a new job especially when a former employer is not giving you the best of references. It is actually easy to find out if they are saying improper things about you. Have a friend call the former employer to ask about you. In the alternative, there are professional investigators, such as Documented Reference Check of Diamond Bar, California, that gives you a written, word for word transcription of the entire conversation, even under penalty of perjury. This can be very helpful to either recover your rights pursuant to slander or give a copy of it to the former employer to make sure it does not happen again. Usually a simple letter to the employer advising them that you know what they are doing and demanding that they cease such actions or face legal prosecution is sufficient to prevent it.
Myth 8: Harassment or Discrimination Has Few Effective Remedies
There are numerous state and federal laws preventing harassment and discrimination in the workplace. The problem is proving such improper actions. Rights are most effectively enforced when an employee conscientiously documents any evidences of a “double standard” between one protected class of employees and another. The more often such violations occur or the greater the impact they have on one employee or a group of employees, the better the case.
Additionally, many companies have internal policies governing complaints about discrimination or harassment. An appropriately drafted letter does much to eliminating or preventing discrimination or harassment.
Myth 9: Employee Rights Posters Are Not Required
There are numerous posters and notices about employee rights that employers are required by law to post or to give to employees. Believe it or not, in California, for example, there are fifteen or more posters that must be displayed in the workplace or given to the employees. If the employer fails to do so, it is not necessarily establish your case, but it is evidence of their neglect. In our law office, whether or not the employer displays the required posters, we use it against them. If they did display the poster and did not follow it, we say that they did not follow their own clearly stated policy. If they did not follow the poster and violated the rules, we say that they were negligent in advising their management and employees of the rules to follow which show further neglect and improper intent. Either way, the employees can benefit by this argument.
Myth 10: Employee Rights Options Are Few
Throughout most of history, the employer has been king. The boss establishes the work hours, the pay and the conditions.
In the late 1800’s, Upton Sinclair wrote a book called The Jungle that detailed the abuses of the slaughter houses in Detroit. This awoke the public consciousness to such an extent that many laws were soon thereafter passed protecting employees. Additionally, in the last twenty or thirty years or so, there had been additional laws enacted giving even greater protection for whistleblowers and victims of discrimination.
Needless to say, in today’s world, employees have more rights and protections than at any other time in history. The challenge is not so much employees’ rights, but their knowledge of such rights to use for the greatest impact. Bookstores offer a wide variety of employee rights books to inform employees effectively of their rights.