Chapter 1
Your Rights in the Workplace

Maybe you’re just curious. Or maybe you’re the cautious type of soul who likes to think ahead and prevent a wrong before it happens. But the best bet is that you are reading this book because you already have a work-related problem:

•  You were not hired for a job and you have good reason to suspect it was because of your race. Or your disability.

•  Your employer promoted a less-qualified person to fill a position you were promised.

•  You want to know your legal rights if you consistently work overtime. Or if you want to take a leave to care for a sick parent. Or if you are called to serve on a jury.

•  You have just been laid off and you’re wondering if you have the right to get your job back. Or to get unemployment payments in the meantime. Or whether your employer owes you severance pay.

•  You want to help evaluate a new job you’ve been offered. Or you want to find out your legal rights as a jobseeker.

This book will help you understand the ­legal rights that apply to your situation. It ­explains federal workplace laws—such as those guaranteeing your rights to be paid fairly and on time and to work free from ­discrimination. It also explains the twists state law may place on your workplace rights—regulating, for example, both your right to smoke and your right to work in a smoke-free place, or whether or not you are entitled to time off work to vote or to care for a sick child.

Tackling a potential workplace problem can feel difficult, so heed that noble adage: Simplify, simplify. Better still: Simplify. Proceed to the chapters that discuss the substance of your problem and skip the rest for now.

Also, be aware that there are many public and private agencies, groups, and organizations that specialize in workplace issues, and many of them provide free—or low-cost—counseling, support, or referrals. You will find information on these organizations peppered throughout the book and a comprehensive listing in the appendix.

Analyzing Your Options

If something is amiss in your workplace and you have turned to watercooler wisdom, commuter train tales, or locker room skinny, you may have come away with the same ­urging: Sue.

For most people, that is bad advice. The courtroom is usually the worst place to ­resolve workplace disputes. Most of them can be handled more efficiently and much more effectively in the workplace itself—through mediation, arbitration or, most ­often, by ­honest conversation.

If you have suffered an insult, an injury, or a wrong at work, you are probably feeling angry or hurt. If you have lost your job, you may be hurting financially, too. All of this is likely to cloud your ability to make well-­reasoned decisions. So, go slowly. Decide what you want to gain. If an apology from your employer would suffice, save yourself the time and expense of filing a ­legal action and ask for the consoling words instead.

Talking It Over With Your Employer

Do not overlook the obvious: First, try talking over your workplace problem with your employer. An intelligent discussion can ­resolve most wrongs—or at least get your ­differences out on the table. Most companies want to stay within the law and avoid legal tangles. So, the odds are that your problem is the result of an oversight, a misunderstanding, or a lack of legal knowledge.

Here are a few tips on how to present your concerns to your employer or former employer.

Know your rights. The more you know about your legal rights in the workplace—to be paid fairly and on time, to do your job free from discrimination and retaliation, to ­labor in a safe and healthy place—the more confident you will be in presenting your problem. This book offers a wealth of information about the basic laws of the workplace—and tells you where to turn if you need more ­specific information to clarify your rights.

Also, the book contains a number of charts summarizing state laws on various workplace rights, including specific penalties that may be ­imposed on employers who violate them. Your best course is probably not to sue your employer over a violation of a law ­requiring paid time off for jury duty or a single mis­calculation of overtime pay. But knowing whether a ­particular transgression can be punished with a fine, a criminal conviction, or an order to ­rehire you is the kind of information that can make your ­employer take your complaint more seriously in the bargaining process.

Stick to the facts. Keeping your legal rights firmly in mind, write a brief summary of what has gone wrong and your recommendation for resolving the problem. It often helps to have someone who is more objective than you are, such as a friend or family member, review the facts of your workplace problem with you and discuss possible approaches to resolving it.

Check the facts again. The human memory is not nearly as accurate as we like to think it is—particularly when it comes to remembering numbers and dates. Before you ­approach your employer with a complaint about your pay, check to be sure your math is correct. If your beef is about a discriminatory remark, be sure you can quote it verbatim. Review all of your written records to make sure you have not overlooked a past event or pivotal memo.

Do not be overly emotional. Recognize that dealing with a workplace problem can be stressful. After all, if you are like most workers, you spend about half of your waking hours on the job. Or you may be out of work—and having a hard time finding a new job. Acknowledge that these pressures of time and money can make it more difficult to deal with a workplace problem. Then vow to proceed as calmly and rationally as possible.

Stay on the job if possible. If your job is on shaky ground, try not to jeopardize it further by losing your temper and getting fired as a result. A calm presentation of a complaint is always better than an emotional confrontation. Remember the common wisdom that it is easier to find a new job while you still have your old one. At the very least, it’s easier to blaze a new career trail if you leave no muddy tracks behind you.

Be discreet. Discussions of workplace prob­lems are often very personal and should take place privately—not in front of clients, customers, or coworkers. Employment problems can be divisive not only for those involved, but for an entire workplace. You don’t want to be justly accused of poisoning the workplace atmosphere or of filling it with disgruntled workers forming pro and con camps. Ask for an appointment to discuss your complaint privately with your supervisor or another appropriate manager. If you give that person a chance to resolve your problem rationally and privately, he or she will be more apt to see things your way.

Documenting the Problem

Most employers now embrace the workplace mantra reinforced by thousands of court cases: Document, document, document. If your good working situation has gone bad—or you have recently been fired—you, too, must heed the call: Make a record, preferably a written one, of all that happened. You are nowhere, legally, without evidence of how and when things went wrong.

A little bit of workplace paranoia may later prove to be a healthy thing. Even if everything seems fine now, take the extra time to create a paper trail. Collect in one place all documents you receive on the job: initial work agreements, employee handbooks, management memos, performance reviews. To be safe, keep your file at home, away from the office.

If you have what seems to be a valid ­complaint, it is crucial to gather evidence to bolster your claim. From the start, beware of deadlines for filing specific types of legal claims. The deadlines may range from a few weeks to a few years but will likely signal that you have to act quickly.

Watch what you grab. While it’s true that you are in the best position to gather evidence while you are still working, be wary of what you take in hand. Confidential information, such as evidence of the company’s finances and other documents that the employer has clearly indicated should not be disclosed, are off limits. If you take these kinds of documents out of the workplace, that may actually become a legal ground for the company to fire you —or for a court to limit or deny your remedies for wrongful treatment you suffered while on the job.

There are several kinds of evidence you should collect as soon as possible.

Company policies. Statements of company policy, either written or verbal, including job descriptions, work rules, personnel handbooks, notices, or anything else that either indicates or implies that company policy is to treat workers unfairly may be the most meaningful evidence you can amass. A straightforward company policy can also help bolster your case or complaint if you can show that the policy promised something the company didn’t deliver.

Written statements by management. State­ments by supervisors, personnel directors, or other managers about you or your work are also important. Save any written statements and note when and from whom you received them. If you have not received any written reasons for a job decision you feel is discriminatory or ­otherwise wrongful, make a written request for a statement of the company’s reasons.

Verbal comments. In many cases, employers and their managers do not write down their reasons for making an employment decision. In such cases, you may still be able to document your claim with evidence of verbal statements by supervisors or others concerning unwritten company policy or undocumented reasons for a particular action involving your job.

Make accurate notes of what was said as soon as you can after the statement is made. Also note the time and place the statement was made, who else was present, and the conversation surrounding it. If others heard the statement, try to get them to write down their recollections, and have them sign that statement. Or have them sign your written version of the statement, indicating that it ­accurately reflects what they heard.

We’re All in This Together

Coworkers may be reluctant to help you with your workplace complaint, whether by giving statements of their own experiences or by backing up your story of what has ­occurred. You may run into the same common reaction: “I don’t want to get involved.”

People may be afraid they will lose their own jobs or suffer in some other way if they pitch in and risk creating bad blood with the company. You may be able to persuade them to help you by reassuring them that the same law that prohibits the initial wrongful treatment also specifically prohibits the company or union from retaliating against anyone who helps in an investigation of your claim.

However, if your attempts to coax coworkers are unsuccessful, respect their rights to remain mum—and proceed with whatever other good evidence you can garner.

Considering Legal Action

Wipe the dollar signs from your eyes. While it’s true that some workers have won multi-million dollar judgments against their employers, it’s also true that such judgments are very few and very far between. There are several things to think about before you ­decide to launch a no-holds-barred legal ­challenge to your firing or wrongful workplace treatment.

Evaluate your motives. First, answer one question honestly: What do you expect to gain by a lawsuit? Are you angry, seeking some revenge? Do you hope to teach your former employer a lesson? Do you just want to make your former employer squirm? None of these provides a strong basis on which to construct a lawsuit. If an apology, a letter of recommendation, or a clearing of your work record would make you feel whole again, negotiate first for those things.

You will need good documentation. As this book stresses again and again, the success of your claim or lawsuit is likely to depend upon how well you can document the circumstances surrounding your workplace problem. If your employer claims you were fired because of incompetence, for example, make sure you can show otherwise by producing favorable written performance reviews issued shortly before you were fired.

Before you discuss your case with a lawyer, look closely at your documentation and try to separate the aspects of your problem that you can prove from those you merely suspect. If you cannot produce any independent verification of your workplace problem, you will be in the untenable position of convincing a judge or jury to believe your word alone.

Taking action will require time and effort. You can save yourself some time and possibly some grief by using this book to objectively analyze your job loss or problem. If possible, do it before you begin talking with a lawyer about handling your case. Once again, the keys to most successful wrongful discharge lawsuits are good documentation and organized preparation—both of which must come from you.

Be mindful of the expense. Because many challenges to workplace problems are legal long shots, lawyers who specialize in these types of cases cherrypick the claims they feel are strongest and refuse to handle all others. And these days, many originally well-meaning ­employment lawyers have switched to where the money is: They now represent employers.

So your initial search for legal help is likely to be challenging. And, if you do find a lawyer willing to take your case, you will probably have to pay dearly. If you hire a lawyer with expertise in wrongful discharge lawsuits and your case is less than a sure win, you can ­expect to deposit several thousands of dollars to pay for the lawyer’s time if your lawsuit fails, plus thousands more to cover other costs. (See Chapter 17, “Hiring a Lawyer,” for more advice on this.)