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Your Rights in the Workforce
 
 

Your Rights in the Workforce


Know how you are protected

As an American worker, you have civil rights protected by various programs in the US Government. Knowing these rights is important to protecting your livelihood and well-being. It is equally important to know when and how to file a complaint against an employer and how to seek satisfaction from whatever US Government department or division oversees the particular complaint area.

Introduction: know your rights

You have civil rights in the workplace which are protected by the federal government. In addition, many states have adopted programs and laws which complement these federal laws. The information presented here will help you understand your rights and show you how to get resolution of any workplace issue you may have.

Since laws can change over time, you are encouraged to verify the current status of any law or guideline as you go through the process of problem resolution with any government agency.

There are many areas of civil rights which can be discussed. Here are the ones we cover:

Discrimination
 
Sexual harassment
 
Drug testing
 
Polygraph testing
 
Minimum wage and overtime
 
Worker's compensation / Disability
 
Safety and health
 
Time away / end-of-work rights
 
Right to organize

Discrimination / EEO: everyone has a right to work

Equality was mandated by Title VII of the Civil Rights Act of 1964 (Title VII). The law is enforced by the Equal Employment Opportunity Commission (EEOC) and makes it illegal to discriminate against a job applicant or an employee because of a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against someone who complained about discrimination.

We will describe some discrimination situations below, but you can find out more about the EEOC on the website http://www.eeoc.gov/eeoc. And you can find out more about the Title VII law on discrimination at http://www.eeoc.gov/laws/statutes/index.cfm.

 Sexual harassment

What constitutes sexual harassment?



What is sexual harassment? What do you do if you are feeling harassed or are uncomfortable in the workplace because of unwanted attention or affection?

Basically, it is that feeling of discomfort which itself may be enough to form the basis of harassment.

Any unwanted sexual conduct, actions or comments which contribute to an intimidating, offensive or hostile work environment constitute harassment and are a violation of your civil rights.

If such behavior results in a loss of position, demotion, or termination, you may be entitled to just compensation and/or reinstatement, according to the Civil Rights Act.

Drug testing: a company has rights, too

If asked to take a drug test in order to get a job, do I have to comply?


Alcohol and drugs abuse poses a potential threat, not only to the individual, but to all the people in the workplace who rely on that individual for safety. In addition, the company or organization which hires the individual has risks and liabilities associated with the hire. Such an organization has a lot to lose by hiring the wrong person. Companies have rights, too

What if you are asked to take a drug test? Do you have to comply? Most private companies do not require a drug test. But there are exceptions. Some companies do require drug testing at the final stage of hiring, especially for transportation jobs and those affecting the safety of others.

There are legal liabilities involved in public transportation jobs like those in the airline or shipping industries, busses and trains, limousine service, and jobs with government agencies like the Coast Guard, NASA and the Defense Department.

Employers have the right to ask for alcohol and drug testing as a job requirement. You can accept the testing or decide not to pursue the job opening.

If you are taking prescribed medication for a disability, and the medication becomes the reason you are turned down, the company may be held to be discriminatory under the Americans with Disabilities Act.

However, if you live in a state which allows medical marijuana, and you have a doctor's prescription, you may still be turned down legally. Most states have taken the position that approved marijuana use protects an individual from criminal prosecution, but does not apply to the workplace.

In any case, employers must not violate personal privacy nor discriminate against any class or group of people in the testing process. You have a right to privacy and confidentiality as well as equality in the testing procedure.

Polygraph testing

Can my employer ask me to take a lie detector test?


The Employee Polygraph Protection Act (EPPA) prohibits employers from using lie-detector tests either as a method of screening for new-hires or at any time during employment. But there are exceptions, most notably for hiring security personnel or pharmaceutical-related personnel.

Subject to certain restrictions, lie detectors may also be used in private firms where certain employees are suspected of workforce theft or damage where there was significant economic loss or injury. In such cases, there are strict requirements for the examiner and for the privacy of any information gathered.

Hours and wages: you deserve fair pay for your work

You are entitled to fair pay for your labor. The Fair Labor Standards Act (FLSA) governs the minimum wage that should be paid, and addresses other issues like overtime pay and child labor, specifying requirements, restrictions and limitations.

Minimum wage and overtime

The FLSA determines the difference between exempt and hourly jobs to be based on the job functions, not the job title. But even salaried exempt employees may be entitled to overtime pay, depending on functions performed.

Does the minimum wage include "tips?"


The FLSA establishes that the current minimum wage is $7.25 per hour. But sometimes local standards and compensation are higher than those of the federal government. For example, in New York State, the minimum is $8.00 and will rise to $8.75 on Dec. 31, 2014 and to $9.00 on Dec. 31, 2015.

For workers who get tips on the job, wages may be less than the minimum hourly rate if tips will raise the combined total to or above the minimum level. Employers cannot deduct pay if it will bring the total under the minimum wage level.

Work above 40 hours per week is classified as overtime and is to be paid at the rate of one and one-half times the regular rate for those additional hours.

Employers may not disguise hourly positions by giving employees "important sounding" titles and requiring those employees to work longer hours without additional pay.

Nor can employers disregard such menial tasks as record-keeping, sending emails, or making phone calls, attending meetings or training sessions when they take additional time.

Workers compensation/ disability

If I get hurt on the job and have to stay home, will I still get paid?


The Office of Workers' Compensation Programs (OWCP) provides administration four major disability programs which offer wage replacement benefits, medical treatment, vocational rehabilitation and other benefits to workers and their dependents for work-related injury or disease.

These programs are:

Division of Federal Employees' Compensation (DFEC)

Division of Energy Employees Occupational Illness Compensation (DEEOIC)

Division of Longshore and Harbor Workers' Compensation (DLHWC)

Division of Coal Mine Workers' Compensation (DCMWC)

How to contact the OWCP

If you feel you have a job-related injury or illness, you can contact the OWCP directly.

Federal employees who have been injured on the job, call DFEC, national office: 202-693-0040

Longshore or harbor workers (or federal contract workers injured overseas while working on the job, contact the national office: 202-693-0038.

Coal miners diagnosed with pneumoconiosis, should contact the Black Lung Program, 202-693-0046.

Nuclear weapons workers, who are working with the Department of Energy (DOE) or DOE contractors, contact the Energy Employees Compensation Program national office: 202-693-0081.

Workers for private companies or state governments, contact the workers' compensation program for the state in which you work. The federal government has no role in state programs.

How to handle a wage issue

If you have an issue which needs addressing, the first step is to talk to an HR representative in confidence. Let the HR rep handle the issue with appropriate individuals (management, etc.)
If you do not receive satisfaction in a reasonable time, you should contact the DOL directly.

It is always a good idea to keep a written record and schedule of your attempts to resolve any issue, preferably separate from any company word processor or email system.

How to file a DOL complaint on wages

The Department of Labor's Wage and Hours Division (WHD) is committed to making sure workers are paid fairly for the hours they work. If you want to file a complaint, the WHD can be reached by phone, email, or by personal visit to a local office.

If you have questions or concerns, you can contact them at 1-866-487-9243 or visit www.wagehour.dol.gov. You will be directed to the nearest WHD office for assistance. There are over 200 WHD offices throughout the country with trained professionals to help you. The information below is useful to file a complaint with WHD:

Your name
  
Your address and phone number
 
The name of the company where you worked
 
Location of the company
 
Phone number of the company
 
Manager or owner's name (who should they ask to speak to?)
 
Type of work you did
 
How and when you were paid (i.e. cash or check, every Friday)

Safety and Health

I'm afraid I might get hurt at work. What can I do about it?


The Occupational Safety and Health Administration (OSHA) assures healthy and safe working conditions for workers, sets and enforces standards, and provides training and education. OSHA is part of the Department of Labor (DOL).

Workers have a right to have working conditions which do not pose a threat of physical harm. They should be trained and informed on any job hazards in a language they can understand. They should be allowed to get records on any tests performed to measure hazardous conditions. If they believe the work place contains a hazard, they have the right to contact OSHA in confidence to have the work place evaluated.

OSHA requires companies to follow health and safety rules including finding and correcting hazardous conditions, informing workers of hazardous chemicals and safety procedures, keeping detailed operational records, and providing employees with protective equipment.

Employers are prohibited from any form of retaliation toward an employee who contacts OSHA for assistance or in some other way uses their rights under the law.

OSHA conducts onsite inspections without advance notice. Violations can result in fines and/or citations of how and when the employer must correct any unsafe conditions.

For more information on OSHA

You can contact OSHA in confidence to get more information or to file a complaint or ask for further assistance. You can visit their website at www.osha.gov/ or call OSHA at 1-800-321-OSHA (6742).

Time away/ end-of-work benefits

There are times when you need to be away from work. This time away may be unpaid time, or in some cases paid, but it is most important to have the right to be with family when needed. It is also important that there be some considerations paid to those who lose their job through no fault of their own.

How much time can I take off to be with a newborn child or sick family member?

Here are some laws and rights concerning family leave and job loss.

Family Leave: you can take care of someone for an extended period

You are entitled to take unpaid time off for the birth of a child and to take care of that child in his or her first year. You are also entitled to take care of a family member with serious health issues.

Some individual states offer paid time off for family leave, and you should check with your own state agency on current policy.

Wage and Hour Division (WHD) Family and Medical Leave Act:

12 work weeks of leave in a 12-month period for:

o The birth of a child, and to care for a newborn less than 1 year old

o The taking in of a child for adoption or foster care, and the care within the first year

o The care of the employee's spouse, child or parent who has a serious health condition

o Any urgent situation arising out of the fact that the employee's spouse, child or parent is a "covered military member" on "covered military action" or 26 work weeks of leave in a 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member's spouse, child or parent, or next of kin (military caregiver leave)

Proposed change : As of August, 2014, the Department of Labor's WHD is proposing a rules change to amend the definition of spouse to include employees in legal same-sex marriages who need to take care of a spouse or family member regardless of where they live.

Unemployment Insurance

The Department of Labor's Unemployment Insurance (UI) programs provide benefits to workers who become unemployed through no fault of their own. The DOL works with state governments to qualify individuals and administer insurance benefits.

The DOL provides a toll-free call line to assist workers as well as employers with questions on job loss, layoffs, business closures and job training: 1-877-US-2JOBS.

If I get laid off, do I lose my health benefits?

COBRA

Eligible employees are entitled to continuing health coverage through COBRA (the Consolidated Omnibus Budget Reconciliation Act) which is part of the American Recovery and Reinvestment Act (ARRA). COBRA programs attempt to fill the void from the loss of health coverage previously provided by the worker's employer.

For more information on COBRA

There are several federal government websites which provide information on COBRA and related health programs. An overview of the program is provided at http://www.dol.gov/ebsa/pdf/cobraemployee.pdf .

Other rights

There are a couple of other rights you should be aware of. One involves the right to organize, and the other is the right to report a violation.

Right to organize

Under the National Labor Relations Act (NLRA), it is illegal for any company to prohibit or restrict a worker's right to organize and bargain collectively with their employers. Workers have a right to join or assist unions, discuss terms or conditions of work with another coworker, and raise work-related complaints directly with the employer or with a government agency. The NLRA covers other situations as well, including employer restrictions or prohibitions and similar rules for unions.

For more information on organizing

There are many government websites describing worker labor rights regarding organizing. One site which summarizes the rights and restrictions is http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster11x17_Final.pdf.

Whistle blower rights

If you find that you are working in a situation which you find unhealthy or dangerous, you have the right to bring that condition to the attention of your employer without worrying about retaliation. It is illegal for an employer to retaliate against an employee for reporting unsafe conditions, illegal activities or workplace regulation violations.

OSHA provides protection from discrimination with over 20 statutes covering such situations as work place safety, transportation carriers in airline, marine, railroad, or commercial motor carriers, food, drug, security, health and many more.

For more information on whistle blower rights

For a list of whistle blower rights as well as the latest news bulletins on the subject from OSHA, you can access the website http://www.whistleblowers.gov/.

Summary and conclusion

Federal and state governments have passed many laws concerning your rights in the work place. Most private companies today as well as public sector organizations have Human Resources Departments which are charged with the task of explaining basic work place rights to you.

But it is good to be personally informed on general rights and on the laws and agencies which govern these rights. Having some information on hand will enable you to ask intelligent questions of your employer.

Knowing where to go for further information will also benefit you if you find it necessary to lodge a formal complaint or pursue action on some rights violation. Hopefully, the information you read here will help with that task.

Self-test

Here are a few T/F questions to test your knowledge of work place rights. Answers are provided below.

1. COBRA will help you determine health benefits if you are laid off.

2. Harassment is defined as an unwanted physical act.

3. You need your employer's permission to join a union.

4. You can stay home to take care of a newborn for 3 months.

5. You can take time off to care for your spouse wounded in combat.

6. You can't expect to be paid for small overtime tasks like sending emails.

7. The minimum wage does not include tips.

8. A lie detector test is never justified.

9. A drug test is never justified.

10. There are many ways to get more information on work place rights.


Answers

1. True. COBRA is designed to help with unemployment health benefits.

2. False. Harassment can be anything that makes you personally uncomfortable.

3. False. You are free to join a union without permission or retaliation.

4. True. You have up to 12 weeks in a single calendar year.

5. True. You have up to 26 weeks in a calendar year.

6. False. Any company requirements involving significant time should be paid.

7. False. Hourly wage plus tips should equal or exceed the minimum wage.

8. False. In some specified situations, lie detector tests may be allowed.

9. False. In some cases like transportation or pharmaceuticals, drug testing may be allowed.

10. True. Some sources were listed in this material, and there are many more.


 

Resources

Here are some website pages from the Department of Labor which may prove helpful in developing further insights into the laws which protect you and the procedures which you should use to get more information or to file a complaint.

Laws and Regulations http://www.dol.gov/opa/aboutdol/lawsprog.htm

Wages http://www.dol.gov/dol/topic/wages/

Unemployment Insurance http://www.dol.gov/dol/topic/unemployment-insurance/

COBRA http://www.dol.gov/dol/topic/health-plans/cobra.html

OSHA https://www.osha.gov/workers.html

Unemployment Assistance http://www.doleta.gov/layoff/rapid_coord.cfm

 

 
 
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