5 workplace laws your employer might be violating

by Alison Green on February 1, 2016

If you tend to assume that your employer understands labor law and always follows it … surprise! You may be wrong.

Many employers regularly violate employment law, either knowingly or unknowingly. And there are a few laws that are especially popular to break.

Here are five of the most common ways that employers break labor laws – with some of them being so common that most employees don’t even realize their rights are being violated. Take a look and see if you spot anything here that your own employer should be doing differently.

1. Telling you that you can’t discuss your salary with your coworkers. The National Labor Relations Act says that employers can’t prevent most employees from discussing wages among themselves. The reason for that is that employees can’t effectively organize or unionize if they’re not permitted to discuss wages or uncover potential inequities.

But despite the law, an astonishing number of employers have policies against this anyway – so many that most people think these policies normal and have no idea that it violates the law.

2. Treating you as exempt from overtime pay. Whether or not you’re eligible for overtime pay isn’t up to your employer; it’s supposed to be governed by the type of work you do. The federal government divides all types of jobs into one of two categories: exempt and non-exempt. If your job is categorized as non-exempt, your employer must pay you overtime (time and a half) for all hours you work above 40 in any given week.

The exempt category is reserved for employees who perform relatively high-level executive or professional work, outside sales employees, and a few other narrowly defined categories. But many employers incorrectly categorize employees as exempt when they don’t actually meet the government’s qualifications for the category, and thus avoid paying overtime to people who the law says should be earning it.

3. Asking or allowing you to work off the clock. If you’re a non-exempt employee, you must be paid for all the time you work, including things outside of your normal work hours, like answering emails or taking calls from home at night or on the weekend. You can’t waive this right even if you want to; your employer is required to pay you for that time.

4. Hiring independent contractors but treating them like employees. If your employer controls when, where, and how you work, the government says you’re an employee and your company needs to pay your payroll taxes and offer you the same benefits it offers to regular employees. Yet despite recent crackdowns on this by the government, many employers continue to hire independent contractors and treat them like employees – in every way but pay.

5. Disciplining you for complaining about work on social media. The National Labor Relations Act protects employees’ ability to discuss wages and working conditions with each other. The National Labor Relations Board has ruled repeatedly that employers’ attempts to control or limit what employees post on social media often violate the employees’ rights to engage in “protected concerted activity,” and that employees must be permitted to band together to try to make changes to their employment conditions, even if all they wish to do is to complain as a group. In many cases, the NLRB has warned employers that workers have the right to say negative things about their jobs in public forums without risk.

That said, the NLRB does generally permit employers to prohibit maliciously false statements about the company, harassment, bullying, discrimination, or retaliation.

What to do if your employer is violating one of these laws

If your employer is violating one of the laws, in most cases the most effective first step is simply to talk to your manager. If you start from the assumption that they don’t realize that there’s a legal issue and that you’re being helpful by bringing it to their attention – as opposed to taking an adversarial stance right off the bat – you’re more likely to get a better outcome, one where the problem gets fixed and you maintain good relations with your employer.

For instance, if your boss is asking you to work unpaid overtime when you’re non-exempt, try saying something like, “We’re actually required by federal law to pay overtime to people in my job category. I can work the overtime if you want me to, but the company would need to pay it. Does it still make sense for me to work the extra hours?”

If that doesn’t get you the results you need, at that point you could talk to a lawyer or the appropriate government agency to explore what steps are available to you.

How to file a complaint with the U.S. Department of Labor: http://www.dol.gov/wecanhelp/howtofilecomplaint.htm

How to file a complaint with the National Labor Relations Board:
https://apps.nlrb.gov/eservice/efileterm.aspx

I originally published this at U.S. News & World Report.

You may also like:
{ 69 comments }

{ 69 comments… read them below }

  1. MAB*

    Does anyone know if an employer is required to disclose the amount of accrued vacation and sick leave an employee has? My current place of work doesn’t do so and it seems to be a standard business operation at the last 3 jobs I worked. I am in Oregon if that affects anything.

    Also no job I have ever worked like us talking about how much we are paid. I have had 2 HR reps tell me to keep that on the down low or to tell my employees to stop talking about it. I told them I had no power to stop my employees as it wasn’t against the law and I saw/see nothing wrong with that conversation.

    1. SusanIvanova*

      According to my British co-workers, nobody thinks twice about people talking about their salaries. And that’s how a British manager of mine discovered that all of the new college grad employees were being seriously underpaid; we didn’t have the first clue what to ask for in Silicon Valley, and the VP who hired us (tiny company) had bought his house back in the 70s and had no clue our salaries barely covered rent.

    2. fposte*

      I don’t see anything that would force that in Oregon law–it’s not a state that considers vacation time to be compensation that needs to be paid out. Does your employee handbook say anything? They need to abide by that, if so.

    3. BRR*

      Not a lawyer. Have you asked and they are refusing or it’s just not easily accessible? For vacation my guess is no as there are no state or federal laws that governs it. For sick leave, Oregon has a law requiring sick leave for most workers but I can’t figure out if an employer has to disclose the amount accrued. First ask in your company. If they say no, then you might want to check with Oregon Bureau of Labor and Industries.

      1. fposte*

        Oh, that’s a good point on the mandatory sick leave–it’s brand new, too, so employers may still be working that one out. So you have at least 40 hours of sick leave according to the law, at least.

        1. fposte*

          Sorry, you *accrue* up to 40 hours of sick leave, but they’re not front-loaded, so if you’re new, you might not have that many yet.

          1. BRR*

            MAB’s post also makes it seem like it’s already part of their benefit package. I’m sticking with just ask HR.

            2. MAB*

              I wish HR was an option. With the new law I believe we have to disclose sick leave once a quarter but out “HR” person doesn’t want to disclose either as it “encourages employees to actually use it.” When I heard that in a meeting I had to bite my tongue so hard. Really its that the “HR” person doesn’t want to disclose because our system is antiquated, he would have to actually do HR work and heaven forbid he would have to change.

              Needless to say I don’t respect our “HR” person in the slightest due to this and a few other things I have had to work with him. Which is unfortunate. My last HR rep, though annoying at times, was quite helpful and willing to try new things as long as it was within company policy.

                1. MAB*

                  Sadly I am not.

                  Our HR personal made that statement in a meeting with the company’s owner, president and VP and no one bat an eye. I plan on talking to my boss about it privately but I don’t think it will change.

                  I personally feel we need to hire a specialist as we are large enough to have problems crop up that this person will be completely out of his depth.

    4. Noah*

      My last job made you ask HR if you wanted a PTO balance. It was supposed to print on our paychecks, but the payroll vendor and HR couldn’t figure out how to make out strange accrual process work. So you would ask HR and they would plug it into a spreadsheet and figure it out. They never knew your exact balance unless you quit, you were fired, you asked, or once a year when finance asked for everyone’s PTO balance.

      1. Sharon*

        My last job was bad about this also. We had three different, unconnected systems: 1) the project timesheet system where we had to enter hours worked on projects and also PTO, 2) online payroll that showed used PTO totals on checkstubs (but not how much you had left for the year), and 3) a third system you had to log into to find your total PTO. We were supposed to subtract the total from the latest checkstub (system 2) from the total in system 3 in order to figure out how much we had left at any given time.

        Oh, and the timesheet system in 1 displayed “available PTO” but it was an incorrect number and not to be used. It changed from week to week so it wasn’t at all obvious that it was a bogus number!

        1. Leeza*

          I’m in Israel, where most companies do direct deposit and each employee gets a statement every month that includes how many sick days and vacation days you currently have. This seems so basic to me.

    5. LQ*

      All these stories make me actually grateful for our horrible payroll system which is ugly and clunky and frustrating. But I can easily see how many hours I have of Sick and Vaction time and any floating holidays, etc…

    6. Retail HR Guy*

      Actually, being in Oregon does matter on this one. They are required to proactively provide you with a summary of how much sick time you have accrued at least quarterly. However, since this is a new law many employers will likely not be compliant with it yet, and the law doesn’t require notifying you of how much vacation you have accrued if it is separate than sick time (i.e. if you don’t have PTO that is combined sick plus vacation).

    7. Brittany*

      No they dont have to tell you the amlunt of accrued vacation or sick time you have. You must request that yourself. As for the salaries, its typically frowned upon to discuss thise matters in the workplace, because it can disrupt the work culture .

  2. Meg Murry*

    I’m surprised comp time in place of overtime wasn’t brought up as well as a common violation – I feel like it is brought up here fairly often. However, that is one that many companies technically violate but that (some) employees prefer because it works in their favor. The way it was handled at one company I worked for was that you had the option to take any overtime either as pay at 1.5X your hourly rate or you could get 1.5 hours of PTO for each hour of overtime – and the company also had a policy that you could get up to a certain amount of vacation paid out instead of taking it if you wished. So basically you could either get money immediately, money later or time later. I know that that was technically violating the overtime laws which only allow for money, not comp time, but it was in a way that benefited the employee so I don’t think it would have ever made it to court if someone did try to sue.

  3. Lily in NYC*

    I’m curious about the social media one – we’ve all seen stories where someone is fired for badmouthing their employer on their private FB account – so it’s not legal to fire these people unless what they are saying is a lie? Did I misunderstand that?

    1. fposte*

      It’s not that cut and dried. I’ll include a link to the NLRB’s overview on social media separately, but basically this is an evolving area, so each decision clarifies it a little; the NLRB also says:

      Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
      An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

      2. Ask a Manager* Post author

        Yep — some of the deciding factors in cases have been whether coworkers commented on or “liked” the post. If the person was just bitching into a void or to an audience of their non-coworker friends, it’s probably not protected. The protection comes in when you’re talking with coworkers.

        1. Not Gloria A.A., B.S.*

          So if you see a coworker bitching about their job, you should always comment/like it. :) Got it!

          1. Ask a Manager* Post author

            I know you’re joking, but I feel obligated to say that there are other possible consequences to that, depending on what’s actually being discussed.

  4. NDQ*

    States may have labor laws as well. They might mirror the federal regulations, but not always. The ones I deal with conflict so we have to wait out the courts to opine.

    NDQ

    1. fposte*

      By and large, if there’s a conflict, then the Fed wins; if there’s a discrepancy in the level of protection, the tighter one wins (so the threshold of workplace size for discrimination laws can be lower in some states than the Federal threshold, for instance). But the state can’t say a worker doesn’t have a protection that federal law says a worker does have.

      1. NDQ*

        The law that wins depends upon the state or federal court hearing case, or state or federal agency investigating complaint.

        Most cases I deal with start at state level and the federal laws are sometimes cited as guidance, but not much more.

        NDQ (not an attorney nor have I played one on TV)

        1. fposte*

          Can you give some examples? That sounds really interesting, and I imagine you’re talking greyer areas than how many hours per week constitutes overtime :-).

  5. Bend & Snap*

    #5 is shocking to me. I was almost fired for (anonymously) posting on a message board about layoffs (in 2009) and my company’s crappy behavior, and they held it over my head the entire time I worked there. Maybe it wasn’t illegal then? Or maybe that doesn’t fall under the protected activity?

    1. fposte*

      Or maybe it’s on a list of things employers do that are illegal because they did it and it was illegal :-/.

    2. Ask a Manager* Post author

      Were you directing your message to other coworkers? If yes, then what fposte said. If not — if you were directing it to the public or other non-employees — then it wasn’t protected.

      1. Bend & Snap*

        Ah, makes sense. It was a professional message board but not specifically to my coworkers. I posted anonymously but they audited my computer and then made my life a living hell until I took another job 3 years later.

        Live and learn…

          1. Audiophile*

            Sounds like keylogging. A lot of companies do it, most have a warning at the sign in/welcome screen that your actions are being monitored at all times.

        2. fposte*

          You did this from your work computer? That’s probably what they were really mad about.

          And yeah, if it was anonymous and no company named, it’s not likely to be anything the NLRB would protect, so it sounds like they didn’t break any laws in that respect.

  6. Mimmy*

    Oh I’m pretty sure my temp job a few years ago violated #4. I had been volunteering for a year when the staff wanted to bring me on as a paid employee, so they brought me on as a part-time temp for 3.5 months to help with a major conference plus other duties, then again later that year for 2 more months. IIRC, both times they gave me the choice to set my own schedule but I did have to fill out a timesheet in addition to creating an invoice. It was all straight pay–no taxes were taken out. I also had a performance evaluation at the end of my first gig.

    I’ll admit it did feel weird, but I enjoyed the work (well, most of it…) and my supervisor during the first gig was almost a mentor to me–very tough at times but also very helpful. So I can’t begrudge them too much :)

    1. Ama*

      I know my first job out of college violated #4 — somehow I was an independent contractor despite being the receptionist/office manager for a medical practice and working where/when they told me to work…

      1. I'm a Little Teapot*

        I had at least two jobs like this my first year out of college. One of which did this because they had a habit of *not* paying, or paying below minimum wage.

        Among the many reasons why I want to gag when I hear politicians yammer on about how small businesses are the backbone of America and the best thing ever.

    2. Honeybee*

      I know a graduate position I worked in graduate school violated #4, and it irritated me to no end. I was a residential hall director at a private university. We had to do a certain number of office hours per week and they had to be done in the office, and I had to get them scheduled and approved by a manager; I had a certain number of meetings I had to hold per week with my individual staff and with my direct manager; there were specific rules about when and where we could do on-call work. And yet, we were treated like independent contractors for payroll purposes, which meant that we were stuck paying self-employment taxes. The pay wasn’t even that much and there were only 14 of us, so it was especially insulting.

  7. Anxa*

    #4

    I’m sort of dealing with this now. I’m not being asked to work off the clock, but I feel as though I can’t be truly effective at my job without some sort of prep time. I try to limit this mostly to reading and mental work…planning out my hours, thinking of more efficient ways to go about things, and other tasks that benefit me as much as my employer.

    The thing is, there have been some times where we were so slow, I felt I was stealing money from my employer. But now….it’s taking me a week to turn around an email. Overtime is not an issue, but we aren’t allowed to work anything near 30 hours, so there’s now way to just get more paid hours.

    It’s almost as if this could be a full-time job. Grumble grumble.

    For now, I know I’m going to have to get better about guarding my ‘administrative tasks’ time between sessions.

  8. Joel*

    If you follow Allison’s advice on here, if your employer is violating a labor law, you just have to suck it up, find a new job, give proper notice, and kiss the ring on your way out. Managers sure like other managers.

    1. Ask a Manager* Post author

      Uh, did you read the whole article and see where I suggest talking to a lawyer or filing a complaint with the U.S. Department of Labor or the National Labor Relations Board?

      What the hell, man.

    3. Panda Bandit*

      Next time you should read the whole article instead of vomiting your ignorance all over the internet.

    4. Juli G.*

      What? She suggests talking to your manager first instead of going to the nuclear option first, which makes sense. Take the first one – people commonly believe that sharing salary info can be restricted. When I advise managers they can’t tell their people that, they’re shocked. Same with comp time. My department did that for years before an employee told HR and they corrected it. Employees were surprised and disappointed to give up the comp time option. The managers were wrong but not malicious.

      I think Allison advocates giving managers a little benefit of the doubt but that you should stand up for your rights if ignored.

  9. Wolfess*

    Re: #3, how does traveling (e.g. for conferences) work for non-exempt employee pay? Do they put 24 hours on their timesheets for multi-day travels? The hours they spend specifically at conference events? The typical 8 hours a day?

    2. Ask a Manager* Post author

      Nope, just (a) time spent actually working and (b) any travel time that falls during their regular work schedule. So you don’t get paid for time sleeping, hanging out in your hotel room not working, etc.

  10. Rebecca*

    #1 and 5 – check. Told verbally in a meeting that doing either one will result in termination. Oh, and if we tried to be anonymous on social media, we were assured that our IT staff would track us down and identify us.

    #3 – manager asked all of us to give her our personal cell phone numbers in case the West Coast staff had questions after hours, as we are on the East Coast. We’re non-exempt, and because I read this blog, I asked how we would be paid and our minutes compensated if we were on a prepaid plan. She insisted it would only take a few minutes, perhaps, blah blah blah, and I reminded her of the overtime rules and that we had to be paid if we worked. She dropped it, begrudgingly.

    I feel like there needs to be a national reminder about the salary discussion issue, like posters that must be placed in every work place, like the ones my employer doesn’t post now about minimum wage, etc. :(

    1. neverjaunty*

      In some states they are required to post those notices. You really, really, really should talk to an employment lawyer.

  11. MsChandandlerBong*

    I’ve been wondering this for a while…is an admin assistant making $25K per year exempt or non-exempt?

    When I first moved to NYC, I took a job as an admin assistant for a real estate management company. I didn’t supervise anyone, and I didn’t have much leeway in determining my tasks. I could decide the best way to carry out X, Y, and Z, but my boss always told me what X, Y, and Z should be. I did things like making copies of rental agreements, answering the phone, getting documents together for real-estate closings, faxing documents, placing pre-written ads in the newspaper, etc. After I’d been there a few months, I started doing stuff like making fliers about open houses, but nothing really administrative. I know my salary was just over the threshold, but I don’t know if those duties qualified me as exempt or non-exempt.

    There’s nothing I can do now if I was misclassified; I didn’t keep time sheets (because I was salaried and told I didn’t have to keep any), and it was about 10 years ago. I’m just curious.

    2. BAS*

      An admin asst, no matter how much they make, by default of job title is generally considered non-exempt as they don’t usually control the scope of their work.

  12. Sarak*

    What if it’s not YOUR workplace? I just found out about a company that’s breaking labor laws in a really egregious and outrageous way, but I don’t work there. Can I tip off the DOL?

  13. SPHR*

    Alison, I love your column, and I agree that employers with non-willful violations should provide immediate remediation, and those with willful violations should be taken to task.

    I was a bit surprised at the jump directly from “talk to your manager” to ” call a lawyer or file a complaint with the NLRB or DOL.” Employees often have more options, including discussing potential violations with a Compliance Officer, Ethics hotline, or HR Professional (there seems to be some justified hate for them in these comments, but I promise there are many, like me, who take pride in our work of ensuring legal, fair, and respectful treatment for employees!).

    If a manager is violating one of the laws you mentioned, then HR, Legal, or Compliance can swiftly work towards to a resolution through coaching, counseling, investigation, and/or back pay. This can be a much better option for the employee than the adversarial “nuclear” option of a lawyer or government agency–not to mention less time and $$$ expense to the employee!

    1. Ask a Manager* Post author

      Eeek, you’re right. I should have written “talk to your employer” and explained all the many things that could mean, rather than just “talk to your manager”!

    2. neverjaunty*

      “Call a lawyer” and “file a complaint with the NLRB or other agency” are very different things. Speaking to an attorney is a good way for an employee to learn what their rights are.

      And while I agree with you that it is generally best for an employee to go through channels, when a company is engaging in blatant illegality, I hope you can see why an employee might not trust management to handle it appropriately and with no consequences to the reporting employee.

    3. Stitch*

      With a small business violating one or more of these, frequently “talk to your HR rep” is the same as “talk to your manager”. Where I used to work, a mom-and-pop style place, “mom” was the main manager as well as being the closest thing to HR we had – and she was 100% aware of the legal issues, just really good at not fixing them – kind of like the spy post recently. (Whenever I asked, I got answers like “We’re working on it, it’ll be fixed by mm/yyyy” and then mm/yyyy rolls around and we hear “Something came up [always something that was someone else’s fault, like the payroll company], so it’s pushed back by a few months”, to repeat forever. I left when I realized that the solutions would be years to come, if they even actually meant to implement them.)

      I’d love to bring them to the DOL, but I have no idea how to do it. Nearly everyone employed there would support the complaints, but they’re too afraid of losing the job. I’m even a little afraid of burning future bridges by raising legal concerns. It’s a tough call.

  14. Socal Tech*

    I would also add that overtime can vary by state. Some states require overtime if you work more than x hours in a single day.

Comments are closed.