Are you violating your employees' rights? Find out which violations are the most common and what you need to know to avoid making them.
- Employee rights are put into place by the federal government to protect employees. States also have labor regulations that employers must follow.
- Employers should be knowledgeable about employees' rights to avoid violating them.
- Common rights violations are discrimination, wage miscalculations, sexual harassment and whistleblowing.
It is your responsibility as an employer to know what rights your employees have and how they are protected in the workplace so that you can avoid violating those rights and advocate appropriately for your employees. For example, do you know when overtime kicks in? Or what happens to unused vacation days? Or how your employees are protected should they find themselves in the position of a whistleblower?
There are many laws in place to protect the rights of employees, such as equal employment opportunities, occupational safety and health, and even employee rights to privacy. Businesses are also subject to laws and regulations at the state level.
What are employee rights?
Employee rights, put simply, are practices put into place to protect employees in an organization. As an employer, your knowledge of your employees' rights can help you avoid potentially disastrous pitfalls.
"[Employee] rights are often violated simply because the employer doesn't know any better or thinks that their actions are OK," said David Bakke, employment expert at DollarSanity.
Here are some of the most common types of workplace rights violations.
Unpaid compensable time
If you employ nonexempt workers whose duties include being on call or working a 24-hour shift with interrupted sleeping time, you should be aware that those employees are entitled to regular wages for any amount of time they spend performing those duties. They are also entitled to compensation for any additional hours they work, such as overtime, which is time-and-a-half pay, if they work over 40 hours in one week or work through their lunch break.
Unpaid vacation time
The Fair Labor Standards Act does not require employers to pay employees for unused vacation time – in other words, if they don't use it, they lose it. The FLSA does not regulate vacation and other types of time off from work. However, some states do require employers to pay for unused vacation in the event that an employee is terminated, and other companies may have their own policies regarding unused vacation or sick time.
Some employers have a "use it or lose it" policy where if an employee does not use all of their accumulated vacation days by the end of the year, those vacation days go away. "Use it or lose it" policies are illegal in California, Nevada and Montana, while other states – such as North Dakota, Massachusetts and Illinois – require employers to give employees a reasonable opportunity to use their vacation time before they lose it. New York and North Carolina require employers to formally notify staff of "use it or lose it" policies. [Read related article: What Is a Reasonable PTO Policy?]
Determining whether staff is exempt or nonexempt can be confusing. Exemption status is not determined by job title or whether the employee receives a salary versus an hourly wage, but by whether they qualify for overtime pay. An exempt employee is not entitled to overtime pay, according to the labor laws under FLSA, and is generally given a salary. To be considered exempt, an employee must earn a minimum of $455 per week, or $23,660 per year.
It is vital to know your employees' exemption statuses so you can make sure they are being fairly compensated for their time.
Unpaid bonuses or commissions
When you offer a job to a new employee, the compensation package may include commission or bonuses based on performance. Commission and bonuses are not regulated by the FLSA, so whether the employee is entitled to such extra compensation is determined by you, as the employer, and state laws. In some states, an employer may legally require an employee to forfeit a bonus or commission if the employee is no longer employed at the company on the date that the bonus or commission is to be paid, while other states expressly prohibit this practice.
Unpaid or miscalculated overtime pay
The FLSA determines overtime pay regulations on the basis of a 40-hour workweek and stipulates that for hours worked in excess of 40 hours in one week, employees must be paid time-and-a-half based on their regular hourly rate. For example, if an employee's regular hourly wage is $8, their time-and-a-half wage would be $12. They should be paid $12 for every hour over the 40 hours that they worked in one week.
False reporting has become an issue with overtime pay, particularly for undocumented workers. For instance, employers will establish rules where overtime work is not allowed or will not be paid without prior authorization, and then will not allow workers who do work overtime to report those hours, resulting in free labor. Time and attendance software can help you accurately track and report your employees' hours to ensure they are being fairly compensated for their time.
A whistleblower is someone who reports an illegal activity or an activity that violates company policy. A whistleblower does not have to be an employee at your company – they can be a client, supplier, contractor, consultant or anyone else who might have witnessed illegal activity.
There have been many federal and state efforts in the last few decades to create policies to protect whistleblowers from retaliation, such as blacklisting, wrongful termination, demotions, or even threats and harassment in the work environment.
The Whistleblower Protection Act was passed in 2012 and provides legal protection for federal employees, while most states provide the right to sue employers for compensation or redress for employer retaliation to employees who have reported transgressions.
The Civil Rights Act of 1964 expressly prohibits harassment or unequal treatment in the workplace based on race, gender, religion, age or nationality. It also prohibits employment discrimination as part of the hiring process, and it has since expanded to further protect employees with disabilities with the Americans with Disabilities Act (ADA) of 1990, which requires reasonable accommodations for employees. States and employers have added their own policies to protect against discrimination based on other factors, including sexual orientation and gender identity.
It is important that your employees know the distinction between unfavorable treatment at work and discrimination, as well as what to do if they believe they have been discriminated against.
To help avoid a discrimination lawsuit or claim, you should always follow these best practices:
- Document all conversations with employees.
- Make sure you have a thorough knowledge of your company's discrimination policies.
- Document your entire hiring processes, including strong reasons for non-hires.
- Ensure you are providing reasonable accommodations for all workers.
If your employees feel discriminated against, they can file a complaint with the Equal Employment Opportunity Commission (EEOC). If they are concerned about protecting their identity, another agency or individual can file on their behalf. As the employer, you are legally prevented from retaliation against the employee.
What should an employer do if an employee's rights have been violated?
Typically, if an employee's rights are violated, there are multiple ways for an employer to respond, depending on what type of violation the employee has experienced.
If you receive an official Notice of a Charge of Discrimination from the EEOC, the first thing you should do is carefully review the notice. The receipt of a notice does not mean you have violated any laws, simply that a complaint has been filed.
Follow the directions on the notice, such as responding to the charge. The EEOC offers mediation to resolve the charge if you and the employee who filed the complaint are willing to participate.
The EEOC may follow up with requests for additional information, such as documents, interviews or onsite inspections. You can read more about what to do if you receive a charge of discrimination here.
An employee may also make their complaint directly to you, in which case you should respond directly, confidentially and empathetically. Make sure you have a system in place for employees to make their complaints and that they know what type of response they should expect (e.g., in person, an email or an inquiry form). Your company's HR handbook should outline your policy on employee complaints, complete with procedure and expectations. You should also have a system in place to conduct an impartial investigation should the complaint warrant one.