10 Workplace Rights You Think You Have -- But Don't

Workplace RightsAs 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 Legal and 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.

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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 in unemployment 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:

Here's a website with contact information for elected officials at the state and federal level:

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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Donna Ballman

Donna Ballman

Contributor

Donna Ballman’s book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase. Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been representing executives, physicians and employees in Florida, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and other employment law issues since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011, 2012 and 2013 ABA Blawg 100 best legal blogs, Paralegal 411’s Top 25 Labor and Employment law Blogs of 2013 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.

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Nancy

If you have been in management for any period of time you would know all the things stated in this article are true. So many people are ignorant of what is legal and illegal and that it varies by state. The one thing to be careful for is that most employers have an employee handbook which states company policies. These policies have to be applied evenly across the board (unless otherwise stated).

February 18 2014 at 9:43 AM Report abuse rate up rate down Reply
Michael Robert Downs

There are so many things wrong with this article I can't even think of where to start. For the most part however I don't even know WHY it was posted, who exactly is the poster trying to protect? It sure as hell isn't individuals!. This is the sort of ignorant media we need to avoid in America, things like this will have you believe you have absolutely no rights as an American worker. MOST of this is actually contradictory to the laws we do have, there are several organizations that will protect non-union employees for a lot what was stated here AND sooo much more (OSHA, Unemployment offices [both which will take legal action all on there own if they deem it needed] and a few others just to be brief)! The last thing you should be worried about is getting fired, there are proper channels to go though to make sure you don't go about it the wrong way THAT is what needs to have light shed upon it. If you feel the desire to quit your job because you have think you have been wronged in ANY FORM contact either OSHA or your local Unemployment office (or both) and they will direct you to the proper channels and actions needed to find out if you stand on legal ground and the things you need to do to stay there, do not follow the here-say of some idiot reporter!

January 02 2014 at 4:48 PM Report abuse rate up rate down Reply
khm351@gmail.com

I worke as a salesman for a small company with less than 5 employees: If I get sick due to an unforeseen illness, is my employer obligated to continue to pay me.

April 09 2013 at 11:19 AM Report abuse rate up rate down Reply
no

Unless you have a federal government job, I'm not sure why you would consider looking into what they require for workplace rights. Massachusetts has laws concerning most of these things. You do have rights to breaks for bathroom and meals. It would be inhumane to not let people use the toilet. I'm not sure this post is quite accurate. Please, those of you concerned about workplace rights, visit your state website and/or contact your attorney general's office before speaking with your employer.

January 21 2013 at 11:04 AM Report abuse rate up rate down Reply
josh

wow thats some messed up stuff

January 16 2013 at 12:00 PM Report abuse rate up rate down Reply
Damon Lewis

I am a little perplexed by this post. Some states may not regulate breaks for employees. However; I know Kentucky does, I learned this through various training courses, and legal education, as well as my management background. To simplify even more it is actually required to be posted in every business. 4hrs mandates a 10 min paid break, 15 at employers discretion. If you work a 6 hr shift you receive one 10 minute paid break, and one 30 minute unpaid meal break. 8 hours, 2 paid 10 minute breaks, and 30 min unpaid lunch. Now on the side of the non-compete. I have actually been to court over one of these when I use to manage a few wireless retail stores. The judge himself stated, " non-completes are not upheld in a court of law, as they are an infringement on an individuals ability to provide for ones family, or self." He did however; advise there is one stipulation, and that would be on the basis that there truly are trade secrets that could be in jeopardy. Now after six years with my current employer, they are trying to screw me over. I never let that happen before, and I don't intend to start now.

December 29 2012 at 2:02 AM Report abuse rate up rate down Reply
Mick

This is exactly why unions were created~ to protect employees from abusive employment practices. Without the union, your boss can basically treat you any way he wants to without any repercussion, unless of course it's based in sexual or racist context. So for all of you people out there who are anti-union because you think they only represent auto workers? You might want to think twice now before we lose every last one of our employee rights.

October 02 2012 at 9:19 AM Report abuse rate up rate down Reply
Manuel

I think your top ten really consider what state you live in, I believe you did mention that though, for example I live in CA. and we are legaly entitled to a unpaid 30 min lunch break, if you work a 6 hr shift or more - anything less than 6 I believe you get one 15 min paid break, which I'm arguing with my boss about now, not to mention he pays me 4-5 days late unless I text him my hours (he and I have no written contract, but upon hiring me he did state pay days are every 1st and 15th of the month, which is not posted at place of employment) and here in CA if fired for retaliation, we have what we call the "whistleblower Law" which protects the employee.
If I'm wrong on any of these, your correction is appreciated.

September 26 2012 at 7:16 PM Report abuse rate up rate down Reply
Manuel

I think your top ten really consider what state you live in, I believe you did mention that though, for example I live in CA. and we are legaly entitled to a unpaid 30 min lunch break, if you work a 6 hr shift or more - anything less than 6 I believe you get one 15 min paid break, which I'm arguing with my boss about now, not to mention he pays me 4-5 days late unless I text him my hours (he and I have no written contract, but upon hiring me he did state pay days are every 1st and 15th of the month, which is not posted at place of employment) and here in CA if fired for retaliation, we have what we call the "whistleblower Law" which protects the employee.
If I'm wrong on any of these, your correction is appreciated.

September 26 2012 at 6:30 PM Report abuse rate up rate down Reply
justinbushwack

ok so i worked at pizza hut for 3 years and ever since i started they would make all there employees wait to clock on sometimes. Well a lot of the times. Like say i was scheduled to work 5-9 sometimes id get there at 5 and it would be super busy and iv had to wait like 2 hours to clock on before. And one day i was supposed to work 9-8 and i worked 9-12 then they made me clock off and sit up there until 5pm to clock back on for just 2 hours.. Well i could never do anything about it cause i couldnt lose my job and one day i heard them say go ahead and sue us if you dont like it quit. Well some people cant just quit cause its not easy to find another job. Anyways i have a new job now and want the money that i should have gotten all those times, especially since i had a 25 minute drive to get there. Could i sue them for doing that to me?

September 17 2012 at 10:27 PM Report abuse rate up rate down Reply

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