Employment Rights in the Workplace

A Tampa Bay WorkForce Alliance E-Course

Many laws protect your rights in the workplace, they fall into various categories:
Worker Type Hiring Discrimination Harassment Pay & Hours Leaves Privacy Health & Safety Injury & Illness Whistle-blowing & Retaliation Unions Termination

Worker Type: Union Employees

The collective bargaining agreement between a union and an employer determines a union employee's rights.

To determine whether a certain employment decision, for example, termination or demotion, was illegal, a union employee must first look to the collective bargaining agreement (CBA or contract).
Union employees are not usually employees at will. The collective bargaining agreement contains rules governing when and how discipline and discharge shall be meted out. The CBA generally limits the employer's ability to fire employees at will.

Worker Type: Union Employees

Usually the employer must have just cause to terminate a union member's employment. The union member has an established grievance procedure to challenge the reasons for his or her termination. Union employers often are required to utilize progressive discipline and issue written warnings prior to dismissal.

Worker Type: Government Employee

Most public employees who are in the civil service cannot be terminated unless the employer has just cause and the termination serves to advance the purposes of the agency. Non-civil service employees of the government have less protection from discharge, but they may have other legal protections. There may be a special statute that prohibits their termination without cause or the employee may have a contract with the governmental agency prohibiting such terminations.

Worker Type: Government Employee Political Appointees

Certain categories of public employees do not have protection from unjust discharge:

Political appointees
Employees serving "at the pleasure" of the governmental unit Policy-making employees Fiduciary employees (those exercising independent discretion and who hold a special position of trust) Or employees who serve in other positions that require special political loyalty may be terminated without cause or for political reasons

Worker Type: Independent Contractor

If you are a true independent contractor, you are not an employee. Most federal and state laws protecting employees do not apply to selfemployed, independent contractors. When a company does not retain the right to control and supervise the individual's time, work performance, method of work, job activities and working conditions, there usually is no employment relationship.

In determining the independent contractor issue, courts also often look at whether the individual is truly in business for himself or whether as a matter of economic reality, he or she is solely dependent on the company.

Worker Type: Temporary Employees

An employee of an agency, leasing, or staffing company that provides temporary personnel is not normally considered an employee of the worksite employer. However, there are many occasions when the worksite employer is considered a "joint employer" who is indeed responsible for discriminatory or other wrongful acts committed by its supervisors against such employees. Most temporary workers have no job security and no fringe benefits.

Worker Type: Private Sector Employees

In most states, the law presumes that private sector employees are employed "at will." The employment-at-will doctrine is that both employer and employee can end the employment relationship at any time without notice or reason. This means that your employer has the right to terminate your employment at any time, for any reason, or for no reason at all or for a bad reason, so long as the reason is not illegal -- even if your performance has been outstanding.

If you are fired without just cause, you will be entitled to unemployment benefits, but nothing more. Because of the employment-at-will doctrine, an unfair or unjust termination, without more, does not necessarily mean that your employer has done anything illegal.

The At-Will Origins

The at-will rule has its origins in a rule in Horace Gray Woods 1877 treatise on master-servant relations. Wood cited four U.S. cases as authority for his rule that when a hiring was indefinite, the burden of proof was on the servant to prove that an indefinite employment term was for one year. In Toussaint v. Blue Cross & Blue Shield of Michigan, the Court noted that "Woods rule was quickly cited as authority for another proposition."

Some courts saw the rule as requiring the employee to prove an express contract for a definite term in order to maintain an action based on termination of the employment. Thus was born the U.S. at-will employment rule, which allowed discharge for no reason. This rule was adopted by all U.S. States.

Wrongful Termination:
REFUSAL TO COMMIT ILLEGAL ACTS
Terminating an employee because he or she refused to commit an illegal act that was ordered by a superior (such as refusing to destroy documents that must be maintained according to state or federal law) is against the law.

Wrongful Termination:
WHISTLEBLOWER
Terminating an employee because the employee complained about his or her employer's illegal activities, (such as firing an employee that made a complaint to the federal government about his employer's illegal dumping of toxic materials).

Wrongful Termination:
RETALIATION
Employers are not allowed to retaliate against "Protected Actions" which include: suing for wrongful termination testifying as a witness in a wrongful termination case or even opposing what they believe (whether they can prove it or not) to be wrongful discrimination.

Wrongful Termination:
FAMILY AND MEDICAL LEAVE
Terminating an employee because the employee exercised his or her legal right (such as taking permissible family leave).

Wrongful Termination:
NOT FOLLOWING OWN TERMINATION PROCEDURE
Often, the employee handbook or company policy outlines a procedure that must be followed before an employee is terminated.

If the employer fires an employee without following this procedure, the employee may have a claim for wrongful termination.

Wrongful Termination:
JURY DUTY
You cannot be fired for taking time off for Jury Duty.

The other side of the at will coin is that you, as an employee, can quit your job for any reason, at any time. You cannot be forced to work for an employer. You don't have to give your employer a reason for quitting.

Discrimination
Although all U.S. states have a number of statutory protections for employees, most wrongful termination suits brought under statutory causes of action use the federal anti-discrimination statutes which prohibit firing or refusing to hire an employee because of race, color, religion, sex, national origin, age, or handicap status. There is currently no federal law that protects against workplace discrimination based on sexual orientation in the private sector, but federal government workers are protected from being discriminated against. There is more protection on the state level.

Federal Statutes

National Labor Relations Act of 1935

Equal Pay Act of 1963 Civil Rights Act of 1964

Age Discrimination in Employment Act of 1967

Rehabilitation Act of 1973 Americans with Disabilities Act of 1990

Federal Statutes:
EQUAL PAY ACT OF 1963
Relates to discrimination on the basis of gender in wage payment.

Federal Statutes:
AMERICANS WITH DISABILITIES ACT OF 1990
Relates to the certain discrimination on the basis of handicap status.

Federal Statutes:
AGE DISCRIMINATION ACT OF 1967
Relates to certain discrimination on the basis of age with respect to persons of at least 40 years of age.

Federal Statutes:
CIVIL RIGHT ACT OF 1964
Relates to discrimination on the basis of race, color, religion, sex, or national origin. Under the Civil Rights Act of 1964, employers are prohibited from discriminating against employees because of religion in hiring, firing or other workplace conditions. You cannot be fired because of your gender. Civil Rights Act of 1964 relates to discrimination on the basis of race, color, religion, sex, or national origin.

Federal Statutes:
National Labor Relations Act of 1935
Provides protection to employees who wish to join or form a union and those who engage in union activity. The act also protects employees who engage in a "concerted activity.

Hiring
An Interviewer Isnt Allowed Questions Relating To:
Are you married? Are you planning to get married? Do you have children? Are you planning to have children? Where were you born? What's your sexual orientation? Have you ever been arrested?

Hiring
An interviewer can, however, ask about personal characteristics if it could hinder your ability to fulfill the job's requirements.
Have you ever been convicted of a crime? Can you prove that you are eligible to work in the US? Can you do this job with or without reasonable accommodations?

Sexual Harassment
An employer may be liable to an employee for instances of "sexual harassment" which can include unwelcome sexual advances, conduct or other physical or verbal acts of a sexual nature, which occur in the workplace. The following conduct is generally considered sexual harassment: Direct sexual conduct - an employer makes sexual advances or statements "Quid pro quo" - job-related benefits are offered in exchange for sexual conduct Hostile work environment - an employer maintains an overly sexual work environment

Workplace Safety
Federal and state laws require that most employers furnish a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In most instances, an employee may anonymously complain to a state or federal agency about an unsafe work environment and be protected against employer reprisals.

Workplace Injury
Workers' compensation laws are designed to compensate employees, who have been injured or killed in work related accidents according to a fixed monetary scheme, without having to resort to litigation. Dependents of a fatally injured employee may also be entitled to benefits. Employers may be protected by limits placed on the amount of an employee's recovery.

Post-Employment

UNEMPLOYMENT BENEFITS Unemployment benefits are based on combinations of federal and state statutes. In Florida, the State Unemployment Tax Act (SUTA) governs this program. Unemployment Insurance provides temporary income to replace wages that are lost by workers who lose their jobs through no fault of their own and are able and available for work. In Florida, the employer pays for this program. Workers do not pay Florida unemployment tax, and employers are not allowed to make payroll deductions for it.

COBRA Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), which is a federal law, employees may be allowed to continue their health insurance benefits, at the employee's expense, for up to 18 months after either voluntary or involuntary termination, if the employer has 20 or more employees.

To qualify for COBRA continuation coverage, an employee must have a qualifying event that causes the employee to lose group health coverage.

Thank you for participating in this Tampa Bay WorkForce Alliance E-Course.