Willa made a sheepish smile at the HR director as she made her way into the HR office yet again. “What is it this time?!” the HR director asked with mock exasperation, an exaggerated role of her eyes, and a chuckle at Willa’s apologetic grin. Willa had indeed been in the HR office at work a lot lately. First, it was questions over her paycheck. The employee manual showed that Willa was supposed to have received a step increase that hadn’t shown up in her paycheck. Then, it was for reimbursement of the expenses for a clinic visit when Willa had to get stitches for a work injury. Willa had also stopped by the HR office to ask about a family leave to care for her mother after a surgery and to enroll in the company’s health savings plan. And this time? Willa closed the HR office door behind her so that no one but the HR director would hear. Willa had something serious to report.

Employment

Your employment means a lot to you. You draw not only income and benefits like health insurance and retirement funding from employment but also purpose, respect, relationship, and reputation. Naturally then, law has a lot to say about employment. Law addresses the full spectrum of work from job posting, application for jobs, negotiation of terms, hiring, training, wages, and benefits, to job safety, injury, privacy, evaluation, and promotion, right down to medical and family leaves, layoffs, plant closings, unemployment, and termination. Law protects workers while preserving a sphere within which employers can shape jobs and influence workers to accomplish the tasks that will preserve the enterprise. Consider the following job rights and responsibilities for opportunities to improve your work and, with it, your life. Retain a qualified legal representative to help you advocate on employment issues and rights.

Recruiting

Law helps you find employment. Law regulates how employers advertise for jobs and how employees apply for and obtain it, primarily through anti-discrimination laws. Federal and state anti-discrimination laws prohibit employers from advertising and hiring based on race, ethnicity, ancestry, national origin, religion, sex, age, disability, genetics, and, in some states or locales, marital status. You should not see employers advertising for “young men,” “young women,” or “good Christians,” for instance, except in the rare cases where a protected category is a bona fide occupational qualification, such as hiring an actor to portray a famous person in history or a pastor of a specific faith. Employers must also avoid using proxies for protected categories, such as “mature” or “attractive,” and be cautious using neighborhood, credit history, or criminal history that may have a disparate impact on a protected population. Some states and locales have ban-the-box laws prohibiting employers from asking about criminal histories on employment applications, permitting criminal-background checks only after an offer of hire. The large number of protected categories and the fact that everyone is a member of at least one protected category effectively require employers to hire according to valid job criteria. Defamation law also protects you from false damaging work or character statements. You should be getting a fair shake when applying for jobs. Consult a qualified legal representative if you suspect that discrimination or similar foul play is keeping you from getting a job.

Audit: If you have been applying for jobs without success, then consider whether you any of the following factors may have been keeping you from getting a job: (a) your race, ethnicity, ancestry, or national origin; (b) your age; (c) your sex, marital status, or family status; (d) your health, disability, or genetics; (e) your faith or religion; (f) your height, weight, or appearance; (g) your military service; (h) your citizenship; (i) your criminal history or credit history; (j) false statements from former employers. Retain a qualified lawyer if you have evidence that any of these factors are preventing your employment. 

Security

Law can also help you keep a job after you gain it. Employers generally retain workers at will, meaning that the employer may terminate the employment for no reason or any lawful reason. Some employers provide contractual assurances of job security, such as for corrective action or progressive discipline before termination, in ways that employment law will enforce. Federal and state labor laws also grant workers the right to organize into unions and bargain for job security and other terms. In jobs where union labor agreements exist, they routinely provide for discharge from employment only for good cause such as misconduct on the job. Teachers, truckers, and municipal employees commonly work under labor agreements with good job security. Government workers may also have job security through civil-service systems and generally have constitutional due-process protections requiring notice and a hearing before job loss. Academics may have tenure protections. Anti-discrimination laws can also provide a degree of job security. The same federal and state laws that protect you against unlawful discrimination in hiring also protect you against discriminatory firing. Employers thus tend to document sound reasons for firing of any employee, whether or not employed at will, to avoid discrimination allegations. Retain a qualified lawyer if you believe that job security in one of the above forms should have protected your employment from termination. 

Audit: Determine the nature and degree of job security under which you hold your current employment, whether: (a) at will; (b) express or implied contract for termination with cause only; (c) legitimate expectation of continued employment; (d) labor agreement for termination with cause only; (e) public-employee due process notice and hearing before termination; (f) civil service termination only for wrongful conduct; (g) statutory tenure or similar statutory protection.  Consult a qualified lawyer to advise you if you face a dispute regarding your job security.

Wages

Law also has a lot to say about the amount, form, and timely payment of your wages. Federal law establishes a minimum hourly wage that many states and locales increase. Employers must pay the highest applicable minimum wage for every hour that covered employees work. Minimum wage laws generally apply to non-supervisory personnel or any personnel earning less than a minimum annual salary. The same federal and state laws also mandate time-and-a-half pay for overtime hours worked in excess of 40 hours per week, for the same non-exempt personnel. Exempt (generally supervisory) personnel do not receive overtime. Know your exempt or non-exempt classification and rights. State laws also require compensation at least monthly for all hours worked in that month. The same laws generally require payment in U.S. currency or equivalent bank check or direct deposit. State laws prohibit employers from requiring employees to keep their wages secret. Employees may disclose and discuss their wage without employer retaliation. State laws also restrict the deductions and setoffs that employers may make against wages, while requiring notices for allowed deductions and setoffs.  Consult a qualified lawyer or contact your state wage-and-hours board if you believe your employer is not paying wages you’ve earned. 

Audit: Confirm whether the law mandates overtime pay for your position or whether your position is exempt. If minimum-wage and overtime-pay laws apply to you, then confirm the following: (a) that you are receiving minimum wage; (b) that you are receiving overtime pay when due; (c) that your employer is counting all work hours properly.  Whether or not minimum-wage and overtime-pay laws apply to your position, confirm whether you have any disagreement with your employer over: (a) timing of your pay; (b) currency or deposit by which paid; (c) deductions or setoffs from your pay.  

Benefits

Federal law closely regulates employee benefits. Federal law mandates that employers of 50 or more employees offer health insurance meeting minimum-coverage requirements to employees working at least 30 hours per week and their dependents up to age 26. Other federal laws offer you significant tax advantage for employer-provided benefits. For example, employees do not pay income taxes on employer-provided health-insurance plans including health savings accounts that comply with federal law. You pay for qualifying employer-provided healthcare insurance with pre-tax rather than post-tax dollars. The same is true for qualifying employer retirement plans like 401(k), 403(b), and SEP-IRA plans that you fund with pre-tax rather than post-tax dollars. Federal law also provides for employers to report to you on the cost of your retirement-plan investments and to insure certain defined-benefit pension plans to protect against employer failure. Federal law also authorizes employers to allow you to choose among healthcare, childcare, and other benefits in what the law refers to as cafeteria plans. Federal law simultaneously limits qualifying employer healthcare and retirement plans in the degree to which they can favor one class of employees over another class. You likely should be receiving benefits like others receive at your place of full-time employment. When an employer-provided healthcare plan refuses to supply a due benefit, federal law supports your private right of action to recover that benefit. Consult a qualified legal representative if you face employee-benefit issues. 

Audit: Identify whether you currently face or soon expect to face any of the following employee-benefit issues: (a) qualifying for health-insurance coverage; (b) dependents qualifying for health-insurance coverage; (c) paying more of the health-insurance premium than you ought to pay; (d) receiving less health-insurance coverage than you ought to receive; (e) not having your health insurance cover a necessary or helpful medical therapy when the insurance should cover it; (f) qualifying for a retirement plan; (g) receiving less of a contribution to your retirement plan than you should receive; (h) undue restrictions on your retirement-plan rollover or investing. Consult a qualified legal representative if you face these or similar employee-benefits issues. 

Records

Federal and state laws require employers to keep records of your employment while giving you access to those records. Employment laws covering wages, benefits, leaves, workplace exposures, injuries, and discrimination require your employer to retain records on those matters. For example, if your employment exposed you to toxic chemicals, then federal and state occupational-safety laws require your employer to retain those exposure records. If you reported harassment or discrimination, then equal-employment-opportunity laws require your employer to save those records for at least three years. Your employer must be able to produce payroll records to document and prove that it paid minimum wage and overtime pay, workplace-injury reports to address safety and worker’s compensation issues, and attendance records to document compliance with medical-leave and family-leave laws. Federal and state laws require that employers keep certain records confidential unless notifying you before disclosure and in some instances obtaining your consent. State laws in some states prohibit employers from keeping records of your political affiliation and restrict your employer from disclosing your Social Security number. Other laws require employers to keep your personnel records in one place but to segregate and maintain as confidential medical records relating to your employment. State laws require that your employer share your personnel records with you and allow you to challenge and dispute their accuracy, while also requiring your employer to copy them for you on your request. Consult a qualified lawyer if you have a dispute with your employer over your access to or the content of your personnel records.

Audit: Identify which of the following personal information your employer has in your personnel records: (a) academic transcript; (b) psychological profile; (c) personality profile; (d) intelligence test scores; (e) credit record and score; (f) criminal history; (g) driving record; (h) medical history; (i) Social Security number; (j) bank and savings or checking account number; (k) marital history; (l) names, ages, and Social Security numbers of children; (m) payroll history; (n) retirement-account broker and number; (o) emergency contact name and number; (p) work-discipline history; (q) work evaluations. Where does your employer keep this information, and who has access to it? Is the information reasonably secure? Consult a qualified lawyer if you experience an embarrassing or concerning disclosure of employment information or your employment information is inaccurate and your employer will not address your concerns.

Accommodation

Federal and state laws require employers to provide reasonable accommodations so that qualifying physical and mental disabilities do not prevent qualified employees from doing their job. These laws interpret broadly the kind of disabilities employers must reasonably accommodate. Obvious orthopedic impairments like a bad arm, leg, or back can qualify as protected disabilities if you could do the job with reasonable accommodation of that impairment. Less-obvious neurological, pulmonary, psychological, and other impairing disorders can also qualify. Disability laws also interpret broadly the kind of accommodations the employer must supply. As long as the accommodation does not cause an employer undue hardship, the employer may have to provide ramps, lifts, and other physical aids, modify sound and lighting, provide sign language for the hearing impaired and text readers for the visually impaired, and make schedule changes. Employers must work with you and vocational counselors in a flexible interactive process to ensure that disabilities do not prevent you from performing a job that you could perform with reasonable accommodation. Consult a qualified lawyer if your disability keeps you from doing work that you could do with reasonable accommodation, and your employer does not cooperate.

Audit: Do you have any physical or mental impairments that interfere with major life functions? If so, then do they affect your work? Could you perform your work better if your employer provided you with a reasonable accommodation of that impairment?  What would that accommodation be?  Consult a qualified lawyer if your employer refuses to work with you to accommodate your disability.

Leave

Federal law guarantees qualifying employees up to 12 weeks of medical leave per year for a serious health condition or leave to care for a family member with a serious health condition, from employers employing 50 or more employees within a 75-mile radius of your job site. The law also protects leave for pregnancy, infant care, and adoption, and extends the 12 weeks to 26 weeks when the care is for an injured service-member. You must notify the employer in advance or as soon as reasonably possible of your need for leave. The employer must notify you of your leave rights and that it is counting certain absences as leave days against your allowed 12 weeks per year. Your leave time may be intermittent and for different conditions. A serious health condition is one for which you were hospitalized overnight or for which medical care providers treated you at least twice. To be eligible for leave, you must have worked for the employer at least 1,250 hours in the prior year and must have worked for the employer a total of at least 12 months. You must supply medical certification of your need for leave, and your employer may require a second or third opinion. On your return to work, the employer must return you to your pre-leave job or one nearly identical but may require you to submit to a fitness-for-duty examination. While law does not require that your employer pay you wages for your leave time, your employer must continue health-insurance benefits. Consult your lawyer if you have disputes with your employer over protected leave time.

Audit: Have you taken or do you expect to take medical or family leave from your employment this year? If so, then confirm the following information: (a) whether your employer is large enough that it must comply with federal employment-leave laws; (b) whether you have worked long enough for your employer to qualify for leave; (c) what forms and certifications your employer requires; (d) whether your leave days will approach 12 weeks; (e) the one-year period that your employer uses to count the 12 weeks. Consult a qualified lawyer if you cannot determine this information or obtain it from your employer.

Safety

Federal and state occupational-safety-and-health laws closely regulate your workplace to protect you from injury. Depending on the type of work you do, your employer may have to comply with federal and state regulations governing hazardous materials, warnings, guarding, protective clothing and equipment, processes, ingress and egress, environmental exposures, noise levels, lighting levels, and other conditions and aspects of your work. If specific safety regulations do not address your work, a general-safety regulation requires that your employer keep your workplace free from recognized hazards likely to cause serious injury. State regulators enforce these occupational-safety requirements through an administrative system that threatens violating employers with fines, stop-work orders, and even criminal charges. Occupational-safety laws also require employers to report serious workplace injuries and to make those reports available to employees so that they know the safety issues in your workplace. State safety inspectors make scheduled inspections, surprise inspections, and injury investigations to keep your workplace reasonably safe. The law prohibits employers from retaliating against you for reporting unsafe workplace conditions. Contact your state OSHA office if you encounter serious safety concerns in the workplace that your employer is not addressing. Employers must not retaliate against employees exercising their OSHA rights.

Audit: Identify which of the following safety concerns you face in your workplace: (a) dangerous presses, die-cast machines, or other manufacturing equipment; (b) dangerous conveyors, lifts, or other materials-handling equipment; (c) caustic or toxic chemicals; (d) unassisted hand movement of heavy items; (e) repetitive-motion hazards; (f) slippery floors and other surfaces; (g) working from ladders, lifts, or other heights; (h) dust, smoke, or other breathing hazards; (i) loud or constant noise; (j) high-speed drills, abrasive wheels, or other rotating equipment. Contact your state OSHA office if your employer is not addressing these or other safety concerns.

Injury

State worker’s compensation laws guarantee compensation for your workplace injury. If you suffer injury in the course of your employment, then your employer or its insurer should pay for related reasonably necessary medical expenses and a substantial percentage of your wage loss as state law provides. Worker’s compensation is a no-fault system, meaning that you receive the benefits whether or not you or your employer were at fault, but you may not sue your employer or co-workers for negligence to recover other economic or non-economic losses. Depending on your state’s law and the particular injury circumstances, you may not receive benefits if you intended your own injury or, in some cases, if your actions were due to your own drunkenness or other misconduct unrelated to work. To qualify for worker’s compensation benefits, you must ordinarily be able to attribute your injury to a specific traumatic workplace event. Worker’s compensation does not ordinarily pay for chronic degenerative conditions, although worker’s compensation may cover certain occupational diseases. Worker’s compensation is an administrative system, meaning that disputes over claims and benefits go before administrative tribunals rather than general-jurisdiction courts. Employers must insure for or otherwise guarantee worker’s compensation benefits. Employers must also not retaliate against employees who seek worker’s compensation benefits. Consult a qualified lawyer about these rights if you suffer a serious workplace injury.

Audit: If you have suffered a workplace injury, then confirm that: (a) no one intended your injury; (b) no one other than you, your employer, and your co-workers was responsible for your injury; (c) worker’s compensation paid all of your medical expenses; (d) comp paid the statutory percentage of your wage loss; (e) you were due no additional specific-loss benefit for amputation or permanent loss of use; (f) your employer restored you to your job after your recovery; (g) your employer did not retaliate for your comp claim in any other way; (h) you have completed your recovery with all rehabilitation services that you need; (i) you have no remaining work disability from your workplace injury. Consult a qualified lawyer if you have any question over these or related circumstances relating to your worker’s compensation rights and benefits.

Termination

Job loss has such serious financial and other consequences that federal and state laws provide you with certain protections. If you had your employer’s promise of continued employment, then you may have a claim against your employer for wrongful discharge. If you were a union member, then you may have the right to grieve your discharge and obtain reinstatement. If your discharge was unlawfully discriminatory or retaliatory, then you would have a private right of action for damages and reinstatement. If your discharge was part of a qualifying mass layoff or plant closure, then federal law would require your employer to give you 60-day notice. Even if your employer had the legal right to terminate your employment, under state wage laws it must pay your wages timely. Your employer may also owe you unemployment benefits. Firing alone does not disqualify you from unemployment benefits. State laws disqualify workers who deliberately disregard their employer’s significant interests, more in the nature of willful misconduct than mistake, lack of productivity, unfitness, or even incompetence. Your employer may also be willing to pay you severance voluntarily. Federal law requires that your employer notify you of your right (known as COBRA rights) to continue your group health insurance at your expense. Federal law also protects your right to control and rollover your 401(k) retirement account. Your greatest interest, though, may be in securing a reliable recommendation letter and personal reference from your former employer to get your next job.  Consult a qualified lawyer about these rights in the event of job loss.

Audit: If you have recently lost a job or are about to do so, then address to your satisfaction each of the following issues: (a) the grounds for your job termination; (b) whether those grounds were unlawfully discriminatory or retaliatory; (c) whether your termination was part of a mass layoff or plant closing and, if so, then whether you had 60-day notice; (d) full payment of your last wage; (e) any severance pay your employer is willing to pay; (f) continuation of your health insurance; (g) whether you qualify for unemployment benefits; (h) your employer’s recommendation letter and reference; (i) your rollover and other control of your employer retirement account. Consult a qualified lawyer if your employer will not address these issues.

Key Points

• Law closely regulates the workplace and your employment rights.

• Anti-discrimination laws ensure your fair opportunity for hiring.

• Labor laws, agreements, and contract rights may offer you job security.

• Employers must pay timely and may owe minimum and overtime pay.

• Federal laws protect, require, and expand employment benefits.

• Personnel records must be secure from others and accessible to you.

• Employers owe reasonable accommodation of worker disabilities.

• You may have up to twelve weeks of family and medical leave rights.

• OSHA laws offer specific and general workplace safety protections.

• Worker’s comp pays medical expenses and work loss for work injury.

• Law protects you against discriminatory and retaliatory firing.

Read Chapter 11.