No one is above the law, including your boss. The National Labor Relations Act and a variety of statutes overseen by the U.S. 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 light of COVID-19, there are some new legal considerations regarding paid leave that employees should be aware of in relation to the recently passed Families First Coronavirus Response Act.
Davida S. Perry, managing partner with the law firm Schwartz Perry & Heller LLP in New York City, says workplace laws typically fall into three broad categories: human rights laws, wage and hour laws and whistleblower laws. Keep reading for a breakdown of what those laws prohibit, how a hostile workplace is defined and what you should do if a manager or co-worker is harassing you. You'll also learn what you need to know about COVID-19-related workplace laws that your employer may be flouting, why it may impact you negatively and what you can do about it.
Workplace Laws Your Employer May Be Violating
Not all workplace laws apply to every business and employee. For instance, some small businesses may be exempt from certain requirements and managers may not have all the same wage protections as hourly workers. What's more, state laws can vary.
However, generally, here are nine of the most common ways that employers break labor laws, knowingly or unknowingly.
-- Using prohibited questions on job applications.
-- Insisting you can't discuss your salary with your co-workers.
-- Failing to pay you overtime.
-- Promising jobs to unpaid interns.
-- Asking or allowing you to work off the clock.
-- Classifying you as an independent contractor, but treating you like an employee.
-- Disciplining you for complaining about work on social media.
-- Allowing a hostile workplace.
-- Failing to provide paid sick leave in relation to COVID-19.
Using Prohibited Questions on Job Applications
Some employers may break the law before you even get hired. The EEOC enforces laws that prohibit a dozen different types of discrimination and, in most cases, employers can't use those factors in hiring decisions or even ask about them during the interview process. That means a job application can't ask for your age, marital status, religion or plans to become pregnant, among other things.
Insisting You Can't Discuss Your Salary With Your Co-Workers
Your boss may not want you and your co-workers to compare your salary or benefits, but they can't prohibit it. Under the NLRA, any attempt to quash these discussions could be seen as an illegal attempt to prevent workers from organizing or unionizing.
Failing to Pay You Overtime
The Fair Labor Standards Act requires employers to pay nonexempt employees overtime pay when they exceed 40 hours of work in a single workweek. Some states have more restrictive laws on the books. Alaska, California and Nevada require overtime pay for those working more than eight hours per day.
Promising Jobs to Unpaid Interns
Companies may want to entice interns with the promise of a paying job at the end of the internship. However, doing so could have an employer running afoul of federal and state minimum wage laws. "It changes the motivation of the internship," says Eric M. Sarver, attorney and principal of The Law Offices of Eric M. Sarver in New York City. Rather than being a learning experience for a student, the internship could be viewed as an unpaid -- and illegal -- training period.
Asking or Allowing You to Work Off the Clock
Nonexempt employees who are covered by the Fair Labor Standards Act can't be asked to do work off the clock. For instance, workers can't be required to do prep work or clean up outside their paid shifts. What's more, employers should be wary of any request to be paid in cash or off the books. "The implication is that the employee is not going to be paying taxes," Perry says. Employers can get in hot water for failing to withhold payroll taxes, and they could also be on the hook for other penalties if the employee files a complaint saying they weren't properly compensated.
Classifying You as an Independent Contractor, but Treating You Like an Employee
Hiring independent contractors instead of employees is one way businesses can keep costs down. It allows them to avoid paying benefits and some employment taxes. However, businesses may classify workers as independent contractors when they are actually employees. "If the employer exercises any control over the person, they are an employee," says Angela Reddock-Wright, employment law attorney and mediator with Reddock Law Group in Los Angeles.
Disciplining You for Complaining About Work on Social Media
Under the NLRA, employees are given wide latitude to talk about their employers publicly, including on social media. That's because trying to curtail worker communications can be seen as an illegal attempt to prevent them from unionizing or organizing. "It's not to say an employee has carte blanche to post whatever they want on social media," Sarver says. Threats of violence, harassing behavior and maliciously false statements could be grounds for discipline or dismissal from a job.
Allowing a Hostile Workplace
An employer has an obligation to ensure its workplace is a safe environment and that worker complaints are handled in an appropriate manner. Some states also require companies provide sexual harassment training to workers or supervisors. "A lot of organizations fumble this ball," says Laurie Girand, president of I'm With Them, a nonprofit organization that works to assist victims of work-related sexual misconduct. Companies may directly or indirectly discourage employees from reporting problems, and many lack a clear code of conduct for their staff.
The EEOC says a hostile work environment is created when a person must endure offensive conduct as a condition of continued employment and the conduct is severe and pervasive enough that a reasonable person would find it intimidating, hostile or abusive. Under this definition, a single inappropriate comment from a co-worker probably doesn't meet the criteria of a hostile workplace. "If he does it 10 times, it's different," Girand says.
However, there are some cases in which a single incident might be severe enough to legally warrant action by an employer. "It could be a public humiliation," Sarver says. "It could be the groping of a co-worker at a holiday party."
A hostile workplace can extend past business hours as well. Employers have an obligation to address behavior such as a person sending harassing texts or messages to a co-worker in the evening. The key is that the employer must be aware of the behavior, unless it involves a supervisor, in which case, a company can be automatically held responsible for the behavior.
While hostile work environments are often associated with sexual harassment, they can actually be the result of any type of discrimination, and employers need to stress that to their workers. "We don't pick on people because they are over 40," Perry says. "We don't pick on people because they are another religion."
Failing to Provide Paid Sick Leave in Relation to COVID-19
According to the U.S. Department of Labor, employees have rights to paid leave under the FFCRA. The act mandates that certain employers are responsible for ensuring that workers receive paid sick leave -- or expanded family/medical leave -- for "specified reasons related to COVID-19."
Under the act, employees of covered employers are eligible to receive two weeks of paid sick leave at either their regular pay rate or two-thirds their regular rate depending on their specific circumstances related to being quarantined, experiencing COVID-19 symptoms or needing to care for someone else who is quarantined (or in the case of parents, up to 10 weeks of paid leave to care for a child whose school or child care provider is closed due to COVID-19). You can read full details about the FFCRA and employee paid leave rights here.
How to Deal With an Employer Violating the Law
If you are uncomfortable with a co-worker's behavior or believe your employer is breaking a workplace law, the first step is to contact your supervisor or human resources department. "I always encourage employees to work through their employers to see if they can work out any issues internally," Reddock says.
The next step may be to file an administrative complaint with the appropriate agency. Complaints about discrimination should be filed with the EEOC, alleged violations of the NLRA can be filed with the National Labor Relations Board and wage issues may be addressed by state labor offices. Most of these agencies have online reporting options. However, it can take six months to a year or more for your matter to be heard, Reddock says.
[See: How to Quit Your Job.]
Another option is to contact a private employment attorney. These lawyers can take civil action against an employer, which could lead to changes in the workplace as well as monetary restitution. Some attorneys may offer free consultations and work on a contingency basis so you may not have upfront costs for representation.
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