y Cindy Krischer Goodman
The Miami Herald (MCT)
The holidays are over, your boss is still a jerk, and now you’re deciding whether to set him straight about how to treat you in 2013.
What you do next could cost you your job, shut you out of your industry for awhile, or help you win a case against your employer.
As we launch into a new year, it’s an ideal time to brush up on your workplace rights.
“What you think you know about your employment rights is probably dead wrong,“ said Donna Ballman, a Fort Lauderdale, Fla., employee-side labor attorney and author of “Stand Up for Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards.“
If you think your boss needs a reason to fire you, you’re wrong. In every state in the nation, with the exception of Montana, employers can fire employees for any reason or no reason at all. But you can learn strategy to help you come out ahead in career-threatening situations.
Let’s say you choose to tell your boss he’s a bully or publicly criticize his style of management. Know that not a single state has a law against workplace bullying and that your criticism could get you fired in most states.
“When you work for a private sector employer, you have no constitutional right of free speech,“ said Mark Neuberger, a management-side employment attorney with Foley & Lardner in Miami. “Most workers think they do and think they can speak out, but they are wrong. They get fired and learn the hard way that they might have been better off addressing their issues differently.“
Knowing your workplace rights starts even before you land the job.
Prospective employees are getting tripped up in the hiring process by answering questions on job applications and in interviews without knowing what’s legally allowed. An employer isn’t supposed to ask questions that reveal a protected status such as age or race. If an employer asks, “What race are you?“ or “Do you have any kids?“ you should answer truthfully, Ballman said, but keep a copy of the application or make a note of the inappropriate question.
Also, an employer isn’t supposed to do credit checks without your written permission. If you have bad credit, be ready to explain your situation. “They are supposed to give you a copy of the report and an opportunity to respond,“ Ballman said.
Once hired, new employees face another quandary. They often sign paperwork without carefully reading what’s shoved in front of them. Big mistake.
“You should understand what you are agreeing to, and assume it will be enforced,“ Ballman said. “And if you are bound by an agreement, make sure you have a copy.“
Increasingly, non-compete agreements are at the center of workplace conflict. By signing one, if you leave or get fired, you may be forfeiting your right to work in your industry for a year or more after you stop working for your employer.
Ballman has discovered employers are slipping non-compete language into employee handbooks and job applications. Sometimes they are even told these agreements are never enforced. “Don’t sign anything if you aren’t sure what you are agreeing to or if you can’t live with it,“ Ballman said.
How do you come out ahead if your employer demands you sign a non-compete contract months or years into the job? “If you decide not to sign it, don’t quit. Let them fire you. Some employers will threaten but won’t actually fire top performers,“ Ballman said.
One of the most troublesome trends expected to heat up in 2013 is conflict over overtime. Employees should know that because you are salaried doesn’t mean you’re automatically exempt from (not entitled to) paid overtime. “Some employees are exempt, but not nearly as many as most employers and employees assume. It’s a complicated issue, and most employers are getting it wrong,“ Ballman said. If they do get it wrong, employers aren’t allowed to retaliate against you for asking for overtime.
Even more, there also is no law that requires employers to pay you more just because you got promoted. “Don’t be so flattered by a promotion that you forget to ask the big questions before you accept,“ Ballman said. Sometimes a better job title means less pay because you’re exempt from overtime. Here’s what you should ask: whether you’re exempt from overtime, whether you still get commissions, if your hours will change, who you will be supervising and whether or not you must sign a contract.
This year, the biggest workplace clashes are expected to arise from online behavior. Employees are asking, “Can my employer monitor my Internet usage and read my emails?“
The answer is yes. Assume your employer is monitoring your emails at work and act accordingly. Don’t review anything, forward anything or post anything from your work computer that isn’t work-related, Ballman advises. “Clever employers know almost everyone has some inappropriate emails they failed to delete. Those emails just may give your employer the so-called legitimate reason they need to defend against a retaliation claim.“
The same goes for what you post on social media sites. Lots of employees are posting nasty comments about their bosses on Facebook, tweeting how awful management is and wondering why they were fired.
“If you are complaining about working conditions, you’re possibly protected. If you are venting without encouraging co-workers to weigh in, you might not be protected,“ Ballman said. Her best advice is not to complain on social media. “There are just too many ways you can mess yourself up.“
If you’re thinking of catching your jerky boss in action on video and posting it on YouTube or Facebook, forget about it. The tape will probably not be admissible in court and could well land you in jail. “I want nothing to do with recordings unless everyone whose voices appear on them consented to be recorded,“ Ballman said.
Instead of recording, Ballman suggests you take good notes that include the time, place, what was said and witnesses. “Keep a running log, but not in your desk or work computer.“
If you are fired for any reason, don’t sign papers shoved in front of you without consulting an attorney. And if your want to sue, try to negotiate first, Ballman said. “In more than 25 years of law practice, I’ve never had one single client say at the end of a lawsuit, win or lose, ’I’m really glad I did that.’ “
Cindy Krischer Goodman is CEO of BalanceGal LLC, a provider of news and advice on how to balance work and life. She can be reached at balancegalgmail.com. Read her columns and blog at hhttp://worklifebalancingact.com/.