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13 Things Your Boss Can't Legally Do

US News & World Report -  Money logo US News & World Report - Money 6/21/2021 Maryalene LaPonsie
a group of people looking at a laptop: Businessman and businesswoman in the office talking about business © (Getty Images) Businessman and businesswoman in the office talking about business

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.

"Employment laws are complicated, and many times employers do not intend to violate the law; they just do not understand their obligations," says Sarah Pawlicki, an employment attorney and member of the law firm Eastman & Smith Ltd. in Toledo, Ohio.

If you've ever wondered, "Can my boss do that?" keep reading to learn more about employee rights in the workplace and what to do if you think your employer has run afoul of the rules.

Your Employer May Be Violating Workplace Laws

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 13 things your boss can't legally do:

  • Ask prohibited questions on job applications.
  • Require employees to sign broad non-compete agreements.
  • Forbid you from discussing your salary with co-workers.
  • Not pay you overtime or minimum wage.
  • Promise a job to an unpaid intern.
  • Discriminate against workers.
  • Allow you to work off the clock.
  • Retaliate against whistleblowers.
  • Fire someone after "papering" their personnel file.
  • Classify you as an independent contractor but treat you like an employee.
  • Discipline you for complaining about work on social media.
  • Turn a blind eye to a hostile workplace.
  • Ignore exemptions to vaccination mandates.

Ask 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.

Require Employees to Sign Broad Non-Compete Agreements

Non-compete agreements are popular nowadays, says Joyce Smithey, founder and partner of Smithey Law Group LLC in Annapolis, Maryland. These agreements generally stipulate employees can't work for a competitor for a certain period of time after leaving a company.

A few states, such as California, prohibit the use of non-compete agreements. However, even where they are legal, they can't be so broad as to make it impossible for someone to find a job in their field. "It has to be reasonable," Smithey says.

For instance, rather than saying a medical administrator can't work at any health care facility, a legal non-compete might limit an ex-employee from finding work at a hospital system within a 20-mile radius of their old employer.

Forbid You From Discussing Your Salary With Co-Workers

Your boss may not want you and your co-workers to compare your salary or benefits, but they can't prohibit it.

"Employees were getting fired for setting up Facebook groups (where they discussed compensation)," says Mark Kluger, employment attorney and co-founding partner of law firm Kluger Healey LLC, which has offices in New York, New Jersey and Pennsylvania.

But trying to quash these discussions, either in person or online, can be seen as an illegal attempt to prevent workers from organizing or unionizing. Beyond violating the NLRA, prohibiting salary discussions can be problematic when it comes gender equality laws, according to Kluger. That's because there is no way for employees to gauge wage equality with co-workers if they can't discuss their compensation.

Not Pay You Overtime or Minimum Wage

Employee compensation is no simple matter. "There is a massive body of law that governs how people are paid," explains Brian Weinthal, partner with the law firm Burke, Warren, Mackay & Serritella P.C. in Chicago.

Still, the rules on overtime are straightforward. 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.

Meanwhile, hourly pay must meet minimum wage standards. While the federal minimum wage is currently $7.25 per hour, many states and even some cities have higher requirements. Employers can't get around paying the minimum wage by paying with tips or commissions either. "You can't have a commission standard that pays less than federal minimum wage," Weinthal says.

Promise a Job to an Unpaid Intern

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. Rather than being a learning experience for a student, the internship could be viewed as an unpaid – and illegal – training period.

Discriminate Against Workers

The EEOC prohibits discrimination against workers on the basis of eight broad categories: race, color, religion, sex, national origin, age, disability and genetic information. That means none of these factors, known as protected classes, should be used when making employment decisions, such as hiring, setting compensation and awarding promotions.

"The number of protected classes has grown exponentially during the last decade," Kluger says. Many states have their own expanded list of protected classes. For example, marital status and political affiliation are among the protected classes in California, while Florida prohibits discrimination against someone based on their AIDS/HIV status.

Allow 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. 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.

Retaliate Against Whistleblowers

Employers can't fire or take disciplinary action against a worker who complains about illegal activity at their workplace. "In states that don't have whistleblower laws, (employees) would have a claim against retaliation," Kluger says.

Kluger, who represents employers in these claims, says workers commonly misunderstand the limitations of the law. Whistleblower laws and claims against retaliation only apply if the employee was complaining about something substantial such as fraud or corruption. Simply having an unpleasant boss isn't sufficient to trigger legal protections.

Fire Someone After 'Papering' Their Personnel File

This occurs when an employer suddenly files a number of complaints against an employee immediately before terminating them. "Papering a file isn't illegal in and of itself," Smithey says. However, if a worker claims they were unlawfully terminated, a recent influx of complaints could reflect poorly on an employer.

"Even if it's accurate and true, it lacks credibility," Kluger says. As an employment attorney, Kluger likes to see a thick file of documentation from his clients, but it can be a problem if managers haven't been consistently documenting their subordinate's work.

Classify You as an Independent Contractor but Treat 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. Essentially, if a company dictates when and how you work, you're an employee, not an IC.

Discipline 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.

"If an employee is complaining on Facebook about how their employer does not provide adequate restroom break time, this may be protected concerted activity under the NLRA," Pawlicki says. "Therefore, employers should proceed with caution if disciplining or discharging an employee because of a social media post complaining about pay or working conditions."

Still, employees shouldn't feel emboldened to say anything they want online. Threats of violence, harassing behavior and maliciously false statements could be grounds for discipline or dismissal from a job.

Turn a Blind Eye to 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 to provide sexual harassment training to workers or supervisors.

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.

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.

Ignore Exemptions to Vaccination Mandates

Employers have a long history of requiring workers to have certain vaccinations. "Hospitals have forever required their employees to be vaccinated against the flu," Kluger says.

More recently, a federal judge dismissed a lawsuit brought by employees of Houston Methodist Hospital who were disputing the hospital's requirement that they receive the COVID-19 vaccine as a condition of employment. "While it doesn't apply to the rest of the country, it will serve as a barometer," Weinthal says. He expects other judges to look to the Texas decision as they consider legal challenges to employer mandates in their states.

While mandating a vaccination is not illegal for most workers, it can violate the law if exemptions are not allowed for medical reasons or deeply held religious beliefs.

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. "Look in (your) employee handbook and see if there is a complaint process," Smithey advises.

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, be aware it can take six months to a year or more for your matter to be heard, depending on the agency.

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.

Copyright 2021 U.S. News & World Report

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