Your Employment Rights: A Guide for Workers

If you are reading this, it’s probably because you’re facing a work-related problem.  Maybe you’re worried that you’ve been discriminated against in the hiring process because of your race, gender, sexual orientation, or disability.  Maybe there’s a problem with the way your company has been treating you, how much they’ve been paying you, or how many hours they ask you to work.  Maybe you’ve just lost your job, and the reason doesn’t seem fair.  This guide is designed to help you access the information you need to understand your employment rights and protections under the United States’ employment laws.  

In our opinion, the best kind of legal advice addresses problems before they get out of hand, keeping people in their jobs and out of the courtroom.  We hope this guide will give you the legal know-how necessary to resolve your workplace problems without too much fuss.  That said, we understand that some work-related issues cannot be resolved without help from legal professionals.  If that’s your situation, we hope that this guide will help you understand how you can use the law to protect your rights and defend your interests.  

Employment law sets mediates relationship between companies and their workers. There are many different aspects to this relationship and, unfortunately, many different ways it can go wrong.  Click on the links below to find about more about your rights and protections in each area of employment.

Employment At Will and Why You Have No Right to Your Job

Many employees believe that the law protects them from being fired without notice or without reason.  Unfortunately, most employees are employed “at-will” meaning that they do not have the benefits of such protections.  If you are employed at-will (and most employees are), your employer can terminate you without cause, without notice, and at any time.  On the other hand, you also have the right to quit at any time, without giving a reason.  Generally, unless your employer has specified that you are not at-will, the law presumes that you are.  At-will employment is the rule, not the exception to it.  

This can be discouraging news for employees who have just been laid off without explanation or without notice.  The good news is that even at-will employers do not have the right to fire their employees for illegal reasons (such as due to discrimination, or in retaliation).  If you believe your employer may have illegally fired you, please contact an attorney to discuss your options.  

At-Will Employment (New York)

At-Will Employment (San Francisco)

For more information on at-will employment, including how to determine if you are not an at-will employee, please see these articles, or watch the video linked below:

Fired at Will – You Can Be Fired for any Reason

Employment Rights – Pay and Hours

We all work for at least one reason — to get paid.  However, a lot of us don’t understand the laws that regulate our wages and the hours we work.  So, where do these regulations come from?

The Fair Labor Standards Act, or FLSA, is the backbone of your right to fair pay for the hours that you work. The FLSA is a federal law, so it applies nationwide. This law establishes:

  • the 40 hour week,
  • the rules for overtime pay,
  • the minimum wage,
  • restrictions on child labor,
  • equal pay for equal work done by a man or woman, and
  • the standards for pay for time off work.

State and local laws may provide greater degrees of protection, but the FLSA sets the minimum standard across the country.  These protections have some restrictions — such as on who qualifies for overtime pay or who qualifies as an “employee” (versus an independent contractor) — and we have elaborated on those questions on our practice area pages (linked below).  As always, if you have specific or detailed concerns about your particular situation, please don’t hesitate to contact an attorney for a free consultation to discuss your options.

Explore these articles to learn more:

Minimum Wage in San Francisco

Overtime in New York

Employment Rights – Discrimination

Federal law prohibits employers from discriminating against their employees on the basis of things like race, national origin, sex, disability, etc.  State laws frequently provide additional or more specific protections.  For example, in California and New York, state law stipulates that employers cannot discriminate against people for being married or unmarried, or on the basis of their involvement with the military.  Unfortunately, discrimination still happens despite the existence of these laws.

So what is discrimination? It can manifest itself in a number of different ways, but, basically, it includes any action that adversely impacts an employee or a job candidate  — such as firing, denying a promotion, or refusing to hire someone — and is also prejudicial or biased in motivation.  Sometimes, discrimination is fairly obvious.  At other times, discrimination can be subtle and unintentional; your employer may not realize that you are being impacted.  Either way, you have the right to pursue legal options to address the discrimination.

For more information on discrimination and your legal protections, please see this article:

Workplace Discrimination in New York and San Francisco

Employment Rights – Family and Medical Leave

Life happens, and sometimes you need to take time away from work to deal with the ups and downs that life brings. The Family and Medical Leave Act (or FMLA) is federal legislation that provides you with the right to take time off work for the family health issues, births, and adoptions that shape the lives of workers. This section explains when you are entitled to a leave of absence, what protections you have while on leave, and what to do if your employer does not uphold your rights.

What events entitle you to family or medical leave?

There are two situations when you are eligible for leave under the FMLA:

  • When welcoming a new member to the family through a birth, adoption, or foster placement; and
  • When you or a family member are facing serious health problems.

Medical leave is only available under specific circumstances:

  • When you must care for your child under 18 who is sick or injured;
  • When your child over 18 cannot care for himself or herself due to disability; and
  • When you, your spouse, or your parents have a health problem that limits your ability to work.

Your company must provide you with leave for the above reasons, and must have the same job (or an equivalent one) waiting for you when you get back.  Additionally, your employer must continue to contribute to your usual benefits, such as health insurance or a retirement plan, while you are away.  However, under federal law, your leave is unpaid.

Your state may have additional legislation in place that provides for paid leave, longer leave, or some other variation on the federal policy.  For more information on your family and medical leave rights, as well as what to do if they are violated, please see these articles.  

FMLA in New York

FMLA in San Francisco

FMLA retaliation cases

Employment Rights – Sexual Harassment

While work does not have to be wiped clean of anything that could possibly be interpreted as sexual, sexual harassment laws shield workers from having to deal with offensive or oppressive sexual conduct while on the job.  So, what is sexual harassment? Generally speaking, it can be defined any unwelcome sexual advance, whether verbal or physical.  

There are two main subcategories of sexual harassment.  The first is called “quid pro quo” harassment, and refers to situations in which an employee is forced, pressured, or coerced into a sexual situation in exchange for some kind of work-related benefit, such as a promotion.  In other words, it’s a “trade” and it is completely unacceptable.  The other form of sexual harassment is known as “hostile work environment” harassment.  This occurs when words, conduct, attitudes, or general workplace culture create an environment that is sexually threatening, intimidating, or offensive.

There are protections in place to prevent sexual harassment in the workplace and help employees who have been victims.  For more information, please see the articles below, or contact one of our attorneys for a free consultation.  We accept sexual harassment cases on a contingent fee basis, meaning that there will be no charge to you unless we win your case.

Sexual Harassment in New York

Sexual Harassment in San Francisco

Sexual Harassment in Silicon Valley

Employment Rights – Privacy Rights in the Workplace

Employers have strong incentives to monitor their employees, both on and off the job.  By gathering information about their workers, companies can protect their own reputations, minimize their risk, analyze productivity, and investigate violations of policy, among other things.  However, there are limits to what your employer can and can’t legally do.  For example, your desk at work might be fair game for a search if there is a compelling reason why your employer needs to go through your belongings; however, it is hard to imagine a situation in which your employer would need to search a private locker.  The law regulates when and how your employer can ask you to be drug tested or lie-detector tested, whether or not you can be recorded at work, how your personnel and medical files should be used, etc.  That said, because the law is often broad and open for interpretation, your best option is to familiarize yourself with your company’s specific policies.  Check the employee handbook.  What does it say about the privacy of your work email or work computer? How about your employer’s drug testing policy? Are there any social media expectations?  The better you know these things, the more effectively you can protect your privacy.

For more information about privacy in the workplace, please contact us:

Privacy lawyers in New York

Privacy lawyers in San Francisco

Employment Rights – Health Insurance

Healthcare costs have risen drastically in the last decade, and for many people, the most important aspect of their job is that it provides them and their family with health insurance.  However, not all employers provide health benefits, and those that do don’t all provide them in the same way.  The Affordable Care Act has broadened health care options for employees and imposed new requirements on employers, but the law is complex and often confusing to navigate.  Here are some of the most important things you should know.  

First of all, employers with 50 or more full time equivalent employees (meaning employees who work an average of 30 hours a week or more) must provide health insurance or face paying significant fines to the government.  For some reason or another, your employer may decide it is more cost effective to pay those fines than to offer insurance, but generally you should expect larger companies to provide some kind of healthcare plan for their employees.  Companies with fewer than 50 full time equivalent employees will not face any penalties for not providing health insurance, but there are substantial tax incentives for those that do.  This means that, hopefully, more and more smaller companies will also begin offering insurance to their employees.

If you have insurance through your employer, please keep in mind that this does not mean your healthcare will be free.  Your employer is not required to pay all or even a part of your monthly premiums, only to sign you up for group insurance with the rest of the employees.  You may still be asked to contribute to your premiums, although the new healthcare law stipulates that these premiums must be “affordable”.  

If you suddenly lose your job, you will not necessarily lose your health insurance, although you may have to pay more for it.  Under COBRA, a federal law, ex-employees of companies with 20 or more employees are eligible for 18 or 36 months of continued coverage, depending on the circumstances.  Your state may offer additional or more specific coverage requirements.  

For more information on health insurance through work, please contact us:

Health Insurance in New York

Health Insurance in San Francisco

Employment Rights – Independent Contractors

As an employee, you are entitled to many protections and benefits that you would otherwise not be eligible for, such as the minimum wage, overtime pay, health insurance (if your company provides it), and more.  Unfortunately, some companies try to avoid providing these protections and benefits to workers by classifying them as independent contractors rather than employees.  If you’re designated an independent contractor, not only are you not entitled to the minimum wage or to overtime, but also your employer doesn’t have to contribute to payroll taxes, retirement benefits, or withhold income tax. Misclassifying employees as independent contractors is very common, very controversial, and also very illegal.  

So what’s the difference between an employee and an independent contractor? Well, typically, it depends on how much independence the person in question has.  If your employer has a lot of oversight, provides you with the equipment needed to do your job, sets your pay rate and your hours, supervises you, and doesn’t hire you on externally, you’re probably an employee.  If you set your own pay rate, your own hours, provide your own equipment, and generally work on a more “freelance” basis in which you are hired externally to perform specialized work, you are probably an independent contractor.  The line between the two can be fuzzy, though.  Think of Uber, for example.  Are Uber drivers employees or independent contractors?  Uber has been classifying them as independent contractors, but this has recently come under fire because the drivers do not set their own pay rate, do not possess specialized skills, and are subject to performance reviews by the company, among other things.

It is very important for you to know whether you should be classified as an employee or an independent contractor, since the difference can mean thousands of dollars in lost pay and benefits.  Please see this article for more detailed information, or contact one of our attorneys if you are concerned that you have been misclassified.

Employment Rights – Unemployment Benefits

Unemployment benefits exist to help ease the financial hardship that families and individuals experience after the loss of a job.  They are potentially available to every employee who has worked for a company that pays unemployment taxes, and the vast majority of companies do.  There are also certain eligibility requirements that determine whether or not you may receive benefits, and they vary from state to state, but typically include:

  • You must have worked within the last year to year and a half.  
  • You must have been laid off or fired for no fault of your own.
  • You must be willing and able to work.
  • You must be actively seeking work.
  • You must be authorized to work in the US.

This means that to successfully file for unemployment, you must be recently and involuntarily out of work, actively searching for another job, and able to legally work in this country.  It is always possible that your former employer might contest your claim for unemployment, so keep any evidence that supports that you had a no-fault termination.  

For more information on unemployment eligibility and how to file a successful claim, please contact us:

Unemployment in New York

Unemployment in San Francisco

Employment Rights – Wrongful Termination: Your Rights When You Lose Your Job

Losing a job can be the most challenging moment in anybody’s work life.  Being unemployed — whether because of downsizing, or lay-offs, or whatever you’d like to call it — takes a severe emotional and financial toll on employees. Deciding how to move forward is one of the most important choices you can make in your life.  

So, is it possible for you to get your job back after you’ve been laid off or fired? Unfortunately, usually not. In most cases, you have no legal right to your job.  Most employment is “at will” meaning that your company can fire you at any time, and for any reason (or no reason at all).  That said, you cannot legally be fired due to discrimination or retaliation.  There are also some circumstances in which you do have a right to your job, such as through your union, which may have a collective bargaining agreement with your employer, or due to the terms of an employment contract.  In sum, most of the time most employees will not have any legal options after they’ve been let go — the only exceptions are if you have been discriminated against, retaliated against, or terminated against the terms of an employment contract or a collective bargaining agreement.  

If you are one of the rare employees who was fired illegally, you can bring a “wrongful termination suit” against your former employer.  Depending on the type and the extent of your employer’s violation, you have the potential to recover your position, lost wages and benefits, attorneys’ fees, and/or a money award aimed at punishing your former employer for bad behavior.  That said, some employers ask their employees to sign a waiver that gives up the right to sue.  You should always consider such a decision very carefully, as it will limit your options for legal redress later on.  You can read more about this in our articles on severance agreements in New York and San Francisco.  

Outside of bringing a suit, you can seek arbitration or mediation with the company. These methods involve a neutral third party who will facilitate and guide negotiations.  Arbitration and mediation are often less expensive and time-consuming that going to court, but they can provide the same compensation.

It is important to act quickly when addressing a wrongful termination.  For more information, please see these articles, or contact us for a free consultation.  

Wrongful Termination in New York

Wrongful Termination in San Francisco

Employment Rights – Severance Pay

A common misconception about severance pay is that it is legally required.  This isn’t the case.  Unless you and your employer have a written agreement stipulating that you are entitled to severance pay — or, in rare cases, a clear verbal agreement — your employer has no obligation to offer you any.  That said, many companies customarily provide severance agreements.  If your employer usually gives severance pay to departing employees with similar jobs as you, you have a reasonable expectation to receive severance as well.  If for some reason you do not receive it, you should contact an attorney.  

So you don’t necessarily have a right to severance pay.  But what about when your company does offer it? Well, in that case, you should consider anything that might come along with the severance agreement.  Some employers offer severance in exchange for an agreement to give up any right to sue the company.  You should always consider such an offer very cautiously, and always take time to review the agreement carefully, preferably with the advice of an attorney. You should never be required to sign anything that waives your right to sue; if you do so, it must be voluntary.  

For more information on severance agreements, please see the articles below.

Severance Pay in New York

Severance Pay in San Francisco

What to Do if You’re Having Problems at Work

If you are having problems at work, here are some helpful tips.  

Talk to your employer about the problem.

  • Talk about the problem with a supervisor or human resources in private.
  • Write out the facts of what has caused the problem. Make sure you have all your information in order before talking. We all make mistakes, and after you look at everything more closely, you might be in the wrong.
  • Try to step back from any emotions that may make solving the problem more difficult. Look at the situation calmly, and try to keep anger or frustration from clouding your thinking or making things worse.
  • Take some time to know your rights before you have the discussion. Read the sections on this site about your issue to learn more about your legal protections and their limits.

Document the issue.

  • Find and keep all information related your job: the job advertisement, the application, questions asked in the interview, your employment contract, company policies or handbooks, written statements from management, performance reviews, comments made at work, comments made outside of work, your “pink slip”, and anything else related to your job. Its best to do this as soon as you start your job because you never know when things might go downhill.
  • Do not take information labeled as confidential.
  • Write down spoken statements as soon as they are made with information about where it happened, when it happened, and who was there when it happened.
  • Store these documents together in a safe place at home.

Talk to your coworkers about the issue.

  • Encourage the people you work with to document their own experiences with the issue.
  • If others hear important spoken statements, have them write down their recollections of the statement, or have them sign your written documentation of the statement and write that your documentation is accurate.
  • Assure them that the law protects them from retaliation for helping you.
  • If a coworker does not want to help, respect their right to stand on the sidelines.

Consider talking to a lawyer about your employment rights.

A lawyer can tell you what your rights are and if they can help in your situation. Although lawyers cannot solve all work-related issues, there are many cases in which they can provide valuable advice. They can help you weigh your options and decide how to pursue the best course of action.  Even if the law cannot address your employment-related issue, speaking to a lawyer can give you the peace of mind that comes from knowing you have explored every legal option to the best of your ability.  

If you need a legal advocate, give us a call.  Our attorneys in New York and San Francisco have handled every type of employment-related issue, and have over 15 years experience both in the courtroom and at the negotiating table.  We will be happy to discuss your situation in a free consultation, and help you explore your options.  Contact us today.  

Author Photo

Robert Ottinger, Esq.

Robert Ottinger is an employment attorney who focuses on representing executives and employees in employment disputes. Before starting his firm, Robert slugged it out in courtrooms trying cases for the government. Robert served as a Deputy Attorney General for the California Department of Justice in Los Angeles and then as Assistant Attorney General for the New York Attorney General’s Office in Manhattan.

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