can your employer do that? probably — but you can still discuss it

by Alison Green on August 3, 2017

I’m having a really hectic week this week, with preparing for a move (actually, most of it is done now, but I write posts for the week on Monday). So some posts this week will be reprints from years ago. This one is from October 2014.

*  *  *

I get a lot of letters that ask, essentially, can my employer really do this?

I work in a industry where I sometimes work in the evenings after my standard 8 hours. I don’t mind at all, because it’s good money. Now to avoid paying overtime, my employer is telling me that I have to shift my hours. In other words, I have to come in late to work, then work into the evening to equal 8 hours with no overtime. Can they do this? This is not what I signed up for.

Here’s another:

I am an hourly worker for a company with 7 branches. My position is being terminated because customer service in the 7 branches is being centralized to the home office. I was copied on an email to my branch manager that I am going to be required to travel to St. Pete to train the CSR’s there ( my replacements) The company is paying my hotel, meals and gas. Can I be fired if I refuse to go? Especially if I have a doctor appointment scheduled during that time period?

The answer to both of these letters — and so many others — is:  Yes, your employer can do that, but they might end up handling it differently if you have a calm conversation with them explaining your concerns. Maybe not, of course, but many, many employers in many, many situations do respond to that.

So the relevant question in situations like these isn’t just “Is this legally allowed?” but also “Is there a way to address this that could produce a change?”

To be clear, laws matter. It’s important to know if your employer is doing something prohibited by law. But the majority of the time I hear this question, (a) what the employer is doing is perfectly legal, and (b) that’s not the starting place that’s going to get you the best results anyway. When you’re upset about something your employer is doing, it often makes sense to start by having a calm conversation with your manager where you explain what you’re concerned about and why.

It sounds like this:

“I wanted to talk to you about your request that I do X. I understand why you’re asking — it’s because Y. But to be honest, Z was one of the reasons I took the job — it’s important to me, and X would be a real drawback for me. Is there any chance of revisiting the plan?”

Or:

“Doing X would cause me real hardship because of Y. Are there any other options?”

Or:

“I understand why you want me to do X, but I’m concerned about Y. Could we take a look at other ways to approach it?”

In many cases, that’s all that it will take to get a different answer. Of course, other times it won’t work — but that conversation is where you should start, unless your employer has already given you compelling reasons to skip that step.

(And for cases where what your employer is doing or proposing doing is actually illegal, there’s information here and here.)

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{ 134 comments }

{ 134 comments… read them below }

  1. hayling*

    Funny enough, I submitted a letter to AAM once with the angle of “how can I convince my employer to change a policy?” and her response was “their policy is actually illegal!”

    2. Falling Diphthong*

      I always enjoy those as a change of pace. “Hey, wait… this one really is illegal! Your company cannot make you smuggle contraband monkeys in your pants.”

      2. kittymommy*

        Yeah, but what if the monkeys aren’t contraband?? Can I smuggle my own monkeys in my pants??

        1. Jadelyn*

          Dear AAM, I have an employee who insists on smuggling monkeys in their pants at least twice a week. This is causing other employees to avoid them due to the awkwardness of having a coworker’s groin screeching at them while trying to discuss work-related questions. How can I convince my employee to do their monkey-smuggling on their own time?

  2. Sloane*

    Unfortunately at least in the US, almost everything is legal. Your employer can mock you to your face – call you stupid, ugly, whatever – until you quit. That’s legal. In most places they can still fire you for being gay or because they don’t like your personal life or your clothes or your haircut. They can change your hours, your job duties, your location, even your rate of pay as long as it’s not retroactive. The only exceptions as far as I know involve changing your pay retroactively, or some kind of protected class (age, sex, religion, and disability).

      1. esra (also a Canadian)*

        I hate to break it to you, but you can quit for any reason or no reason at all here, too.

        1. Sloane*

          Heheh that’s true, I wasn’t trying to imply that it was different elsewhere. Although I guess I don’t know – if you have a contract (which most jobs here do not) what does happen if you are the one to break it. Anything? Could you have to repay something? I know there are some situations in the US where you have to repay benefits if you quit before a certain point.

          1. bridget*

            Very broadly, for all contracts the person who breaks it has to pay the actual dollars of damages that the other party suffered. However, the other party has to take reasonable steps to mitigate its damage. So if you break an employment contract early, the damages are typically based on the extra money the company had to spend to get your job done while looking for your replacement (such as hiring an expensive last-minute temp, or outsourcing your duties) and the money to recruit your replacement (which it must be looking for; it can’t just sit on its hands and say it’s incurring extra costs forever).

          2. esra*

            In theory, yes, but I’ve ever heard of anyone having to pony up, and I’ve never had to as long as a couple weeks of notice is given.

    2. Ask a Manager* Post author

      The big things that are illegal:

      – discriminating against you for your race, sex, religion, national origin, or disability
      – harassing you for any of those those things
      – sexual harassment
      – retaliating against you for making a good-faith complaint of illegal discrimination or harassment, even if it turns out later not to be accurate
      – retaliating against you for exercising any other legally protected right (like organizing with coworkers about wages or working conditions)
      – retroactively changing your pay without your okay
      – not paying overtime if you’re non-exempt

      1. Eric*

        Also not paying you minimum wage, and discrimination on the basis of age if you are over 40.

      2. all aboard the anon train*

        So, for your fourth point, what would you suggest for this situation:

        Some coworkers complained to HR about sexual harassment happening on our department. HR told our department VP. VP and HR told the women who made the complaints that they were hysterical and that such complaints meant they were less likely to get promoted or receive raises or bonuses. One of my coworkers had a lawyer send a letter to HR. HR said my coworkers didn’t have any ground to stand on because nothing was on the record (HR purposefully didn’t record anything they were told and the managers didn’t write an official report/claim to HR, so it looked like nothing was ever reported).

        During the next round of layoffs, everyone who complained about sexual harassment was let go because “their positions were no longer needed”. The person they complained about was also let go. The positions of the women who made the complaints are posted on our career page. The HR rep who refused to put the complaints on the record was also let go. My company’s VP of HR said laying off the HR person resolved the issue. One of my coworkers wants to sue for being forced out for making a sexual harassment claim, but work is saying that she has no legal authority to do this.

        Am I right in thinking MOST of this was illegal?

          1. all aboard the anon train*

            Yeah, I’m in the U.S.

            None of it happened to me, but I was just someone watching it unfold. Suffice to say, this is why no one in my company trusts HR. I’ll let my coworker know that she definitely has options! Thanks!

            1. neverjaunty*

              Please tell your co-worker to talk to a lawyer RIGHT AWAY. The statue of limitations is running, and if she waits too long she may lose her ability to take any action at all.

              (Also, she needs to talk to a lawyer who specializes in representing employees. I am a little boggled at the idea of a lawyer sending a letter to HR and then backing down when HR says “you don’t have a case” while proudly making a damaging admission that “nothing was on the record”!)

            2. Princess Consuela Banana Hammock*

              This is all super super illegal. Like literally every single stage of the process you described is illegal—there’s at least five distinct incidents of unlawful discrimination/retaliation in your letter. And what you’re describing certainly meets the requirements for stating a legal claim (i.e., they have grounds). The HR department sounds actively deceptive—they’re lying about a lot of things to trick your colleagues into missing the window for bringing a lawsuit/complaint.

              But please get your friend(s) to (1) get a plaintiff-side employment discrimination attorney, and (2) file their EEOC (or state equivalent) complaint ASAP. They don’t want to miss the statute of limitations for filing an administrative complaint, which is a prerequisite to being able to sue in court.

              1. all aboard the anon train*

                We’ve been chatting about it this afternoon ever since I posted, and turns out she’s been working with a lawyer and building a case (I hadn’t chatted with her in a few weeks since I’ve been busy and work has been hell), so that’s good news. Everyone here has been super helpful and I’ve sent her screenshots of all the comments!

              2. sstabeler*

                you’re the lawyer, but would this not be a reasonable case for equitable tolling of the statute of limitations, on the basis that the defendant was actively trying to prevent filing a lawsuit?

                I agree that getting a lawyer ASAP is a good idea, though.

        2. Jadelyn*

          Holy shit that entire clusterf*ck is illegal in the extreme. What is WRONG with that company???

          Keeping it off the record doesn’t actually protect their HR or the company from legal repercussions for not doing their due diligence in responding to a complaint. The company laying off the HR person who mishandled it does not leave the company in the clear since they *also* laid off the women who complained – so they simultaneously retaliated, and laid off someone in HR as a CYA move, but that doesn’t actually cover them the way they seem to think it does.

          And honestly, if nothing else, tell your coworker that the company does NOT have any say over whether an employee has legal authority to sue. Ever. That’s a determination to be made by the relevant regulatory body – in this case, the EEOC, in other cases it might be the state dept of labor or whoever else – and the courts themselves, not the freaking defendant in the hypothetical case.

          1. all aboard the anon train*

            Part of the problem is, I think, that they get away with such behavior because a lot of people in my department are in their first or second post-college jobs and don’t really know how things work. Or are women who are listening to male authority figures berate them for reporting such things and made to feel like they’re the ones in the wrong.

            I know I’ve had some problems with certain aspects because I make myself pretty well-versed in my rights and don’t have a problem pushing back, but it’s difficult. I work in the U.S. headquarters, but we’re owned by a British company, and when this was escalated to the executive team in London, there was a lot of talk about how this incident is just Americans being “sensitive” and “too PC”.

            I feel gross just witnessing most of this, but I feel awful for my former coworkers because it’s a horrible situation.

            1. Princess Consuela Banana Hammock*

              Wow, that is insane, especially because what you’re describing is (I think) illegal in the UK under the Equality Act.

              I know this may sound strange, but would it make sense to team up with a legal aid society or lawyers who would be willing to offer “know your rights” training to your colleagues after work at a safe location? The fact that your company has a history of predation and retaliation is really disturbing. (As is the gaslighting/bullying of junior female employees.)

              1. all aboard the anon train*

                Honestly, we have some coworkers in our department who are huge gossips, so I fear that word of something like that getting out would cause more retaliation.

                The bizarre thing is that it’s only my department and the division we report into over in London. We have a separate HR section just for our area. Other sections of the company don’t have this problem, but my division is pretty dysfunctional overall. They’re losing people left and right, and word is that someone’s been trying to bring this up to the CEO, but who knows if that’ll happen.

              2. Bagpuss*

                Yes, discrimination on the basis of gender is illegal in the UK, and then threatening those who complained about sexual harassment would compound the issue and is likely to be indirect discrimination on its own.

        3. Observer*

          Your employer can say whatever they want. That doesn’t make it true.

          Firing the HR person the way they did is stupid. So is posting the same positions on the careers page. Please take a screen shot and send it to your former co-workers. (Not from work, obviously.) This is incredibly useful evidence of pretext.

        1. Sloane*

          That’s a good point, they aren’t immune to other laws that aren’t specific to the workplace.

          1. Paul*

            I’m curious. anyoen a lawyer? Would “punch yourself or be fired” be legal? or a grounds for denying unemployemnt?

      4. Shadow*

        And
        -misclassifying you as exempt or a contractor
        -Underpaying you for any hours worked
        -requiring you to work in unsafe conditions

  3. Falling Diphthong*

    Timely, because Prudie has a letter today from an admin who recently found out that all the regular staff just got big raises, but not the admins. She is furious. Did not talk to the boss, which really seemed like the sensible first step per this AAM post. (To twist the knife and/or increase her leverage, the boss is a politician whose big issue is income inequality.) She did start hunting for another job, which is the right move for “your boss is a jerk and won’t change” when that is true.

    This is the kicker–she stopped bringing in cupcakes. And loyal AAM readers know what happens when you condition people to expect carbohydrates, and then one day THE CARBOHYDRATES ARE GONE.

    1. SeattleNerd*

      See, I actually did not like her letter. She seemed to be focusing her frustration on her coworkers and not her boss, where it rightly belongs. I have no problem with her not bringing things in anymore, but the way she talked about them seemed unfairly hostile.

      Unless they all banded together to prevent her from getting a raise, she should stop blaming them for her jerk of a boss.

      1. Murphy*

        I went ant looked up the letter because I was curious. I feel the same way. It’s not the co-workers’ fault!

        1. KHB*

          It’s not their fault, but if the admin has been providing cupcakes out of her own money, she’s well within her rights to step all over their cupcake-entitlement by saying “Sorry, it’s not in my budget to keep buying these anymore.” (And if they respond with “Didn’t we all just get a huge raise?” she can say pointedly “You did, but I didn’t.”)

          But yeah, the anger needs to be directed squarely at the boss. I’m angry at the boss on the admin’s behalf.

            1. nonegiven*

              Really can’t afford to bring the cupcakes any more. Unless, you guys would pay, say $x each?

          2. Juli G.*

            Cupcakes are one thing but she stopped all socializing because she can’t stand to be around them now that her boss gave them more money. It’s a poor outlet for her anger.

            2. Falling Diphthong*

              I wouldn’t be surprised if the only part of the coldness they’ve noticed is that the cupcakes went away.

              1. neverjaunty*

                That seems to be the case from the letter. The LW should definitely focus on her bosses, but if her co-workers’ reaction to her being cold is “what about our free treats?!” I can see why she’s annoyed with them.

      2. Falling Diphthong*

        Oh, I agree about the direction of her ire being all wrong. And this really is a problem that might conceivably be solved by talking to her boss–she should have written to Alison, who would have told her both those things.

        But I love the cupcake detail, because the response is never “… so the rest of the office set up a rotation and every Friday someone brings in baked goods.” If that happened, you would know that an alien invasion of mind controlling blobs was underway. (Connie Willis has a wonderful short story, Newsletter, in which the holiday season is marked by rampant kindness and good cheer and thoughtfulness, so you know something sinister is going on.)

      3. Sloane*

        I also had to reread it a few times before I realized that the root of her frustration was that they received a raise and she did not. This being the case, the big-picture inequality thing was a bit of a red herring anyway. If her admin position is low skills or would be relatively easy to replace cheaply, she’s just never going to see the gains of a successful Campaign Director or whatever.

        1. Breda*

          But it’s also fair to feel that your boss is being hypocritical by actively increasing the income inequality in his own office. She’s not complaining that she’s not being paid as much; she’s complaining that the lowest-paid staff were the only ones who didn’t receive raises, which makes the difference between them and the higher-paid staff even greater. I think he’s squarely in the wrong, there.

          BUT given that her coworkers seemed to assume that she (and the rest of the admin staff) also got a raise, I think it’s a little weird that her rage is directed at them. Bitterness, sure! But she shouldn’t let that come out in the way she treats them.

    2. WellRed*

      Also two (!) letters related to co workers and affairs. Who are all these people sleeping or trying to sleep with their coworkers.

      1. Falling Diphthong*

        Contra the circumstances here, they should probably not try talking to their managers. Both about “My coworker won’t sleep with me, how can I get him to sleep with me?” and “I keep having affairs with coworkers–why?”

      2. Artemesia*

        I have never worked in any organization in which some of my co-workers are not having affairs; it is so totally common.

  4. whistle*

    Thank you for this post, Alison. I’ve only been reading this site for a few months, and I’ve often been surprised at how frequently LWs ask if something is illegal. My thoughts are usually 1) why would there be laws about that? and 2) why are you jumping straight to “Can I sue?” instead of talking to the employer about the issue?

    1. nonegiven*

      Some of the things that get asked about are illegal in other countries. We really need better employment law.

      1. whistle*

        I mostly disagree with your second sentence. In general, when I read or hear about suggestions for employment laws that are supposed to be employee-friendly, I can think of unintended consequences that are not employee-friendly.

        For example, my husband was a server in California. California law mandates a half hour break for shifts of six hours or more (IIRC). This is clearly supposed to be in support of employee, but this hurt my husband in two ways. One, if he was working, say 6 ½ hours, he would have to take a half hour break, which he had no interest in doing and hurt his tips. Or, two, he would be sent home before reaching 6 hours, and that would hurt his tips as well.

        That is of course the problem with trying to legislate fairness. The law is a blunt instrument that does not do nuance well. I personally prefer the current system of ‘if you don’t like something with your job, say something, and if it doesn’t get fixed, look for another position with better trade-offs (or realize you are willing to live with the trade-offs in your current position).’ Once something is law, there’s no turning back whether the law works well or not.

        (I am in the US.)

        1. Jadelyn*

          The law is not to blame for employers being slimeballs and finding loopholes to the law that wind up harming the employees. The employer is the problem here. Not the law.

        2. Red 5*

          You’re right in your example, but I think a missing piece is that the reason that this solution doesn’t work for the employee is because of another employer-biased standard that has it’s own problems, namely tipping instead of paying servers at least minimum wage.

          I do understand there are servers that are fine with the tipping system the way it is, so I’m not really saying that you have to throw that baby out with the bathwater in this instance, I don’t know, I’m not an expert. But in my experience most of the time when an employee protection backfires to create problems for the employee, it’s either because of another thing that should also be protected, or because employers are very, very good at exploiting loopholes.

          I do agree completely though that laws shouldn’t be passed until people who are very, very smart and who are stakeholders in the arena have considered consequences and I’m a big fan of things like small pilot programs for things, like testing a minimum wage increase in a muncipality to see how it affects businesses before rolling it out state wide.

          1. Myrin*

            Yeah, servers are paid well in my country and I haven’t yet heard any of the numerous people I know in that position complain in any way about their mandated breaks; they are, indeed, generally happy to take one.

          2. Princess Consuela Banana Hammock*

            To be fair, restaurant workers make the non-restaurant minimum wage in California. There’s rampant wage theft and abuse, but we’re one of the only states (the only state?) that pays the state minimum wage (higher than the federal min. wage) to all workers and does not use the federal rule for restaurant staff ($2.13/hour with the expectation that the remainder of the wage will come up to minimum wage through tips).

        3. bridget*

          In addition to unintended consequences, employment laws are also very expensive for companies (not just fighting lawsuits, but also in terms of creating compliance organizations and systems, which are often complex and bureaucratic and create their own layer of unintended consequences). As a lawyer who gets the benefit of these types of complicated systems, I can tell you that many, many companies spend literally millions of dollars per year on legal work to comply with employment laws. That’s money that now cannot be used to be generous to employees in terms of salary or benefits, even if a company would like to be generous just because it’s the right thing to do and/or because it improves employee satisfaction and decreases turnover.

          A much more efficient way for the *system* is for employees to push back on unreasonable situations without a legal framework, and vote with their feet. This market-based approach will often suck for the subset of people who have the least leverage or power to say f that, I’m getting another job. So, I’m not saying a light touch on policy is always best for particular individuals. It’s a matter of considering whether systemically, the costs are worth the benefits. I think it’s a foregone conclusion that legally protecting against discrimination based on race, gender, sexual orientation, ethnicity, disability, etc. is worth the costs of implementation, but it’s not necessarily a moral failing that many reasonable people do not feel like it is worth the cost to protect against other things that are being reasonably addressed by the labor market. (And to be clear, unionization is one of the ways that the labor market can respond).

          1. Jadelyn*

            I suppose it depends on whether you feel that the labor market *can* reasonably address those things. Which, considering the state of the U.S. labor market – in particular, explicit anti-unionization efforts from corporate interests – I have serious doubts about, and given the choice between “let shitty behavior run rampant and wait for “the market” to address it organically, which it won’t effectively be able to do” or “use the tools available (legislation and regulatory enforcement) to curb that shitty behavior, knowing there will be side effects to this approach”, I’m going to go with the latter.

          2. Thinking Outside the Boss*

            I agree with a lot in the first paragraph, but complying with employment laws isn’t what’s keeping employers from being generous with salaries. Last year Google posted profits of $6.8 billion (US). It’s parent company, not so much. Clearly Google could part with $1 billion of profits and share that with employees and still make $5.8 billion. But they don’t. They keep the profits to increase the value of shares to then reward shareholders with increased dividends or an increased stock price. It’s great if you own Google stock. But if you are a Google admin, you’d probably rather have the cash.

          3. neverjaunty*

            The entire reason we have laws is that “market-based approaches” and “vote with your feet” do not work for all but the most sought-after employees.

            Especially when you consider things AAM talks about all the time – that changing jobs often can make it more difficult to get future employment, for example.

          4. Princess Consuela Banana Hammock*

            No—markets are not the solution to exploitation. We’ve tried that, already, and it meant things like employing children, allowing workers to be maimed/murdered on the job, dismal working conditions, etc., etc.

            In the context of labor and employment protections, markets are often the source of inequality and can also exacerbate exploitation. Market “efficiency” often requires an inequitable outcome. And it’s based on assumptions (perfect information, free exit/entry from the market, a wide array of employers, etc.) that simply do not exist in the labor market or in areas in which there are few employers/industries or where employers collude to depress employee protections and wages.

            Maximizing cost-benefits is not necessarily best for society, and as you note, it is particularly exploitative and cruel to those with the least “leverage” (i.e., oftentimes the most disempowered, vulnerable, or unable to “move”). Who do you see as bearing the “costs”? You mentioned “the system,” but for the most part, labor bears a disproportionate share of those costs, as well as a disproportionate amount of the risk when there are market failures or when the assumptions required to achieve market efficiency are not met. There are certainly employers who, on the margin, can be significantly negatively affected by lawsuits that seek to enforce legal rights, but I’d like to see evidence that—at the system-level—those costs outweigh the benefits to workers.

            1. Bagpuss*

              Also, if thins such as employment rights are mandatory they impact on every business, it’s just part of the normal overheads. So you could argue that the market forces will then work against those businesses which chose to take those costs out of their budget for remuneration of their staff, rather than those which treat it as an overhead to come out of profit.

              I think also that to a great extent there are costs when you first introduce new rights / regulations but the ongoing cost isn’t so great.

          5. Gazebo Slayer*

            Shrugging your shoulders and saying “well, the market will disproportionately hurt the most vulnerable workers, but whaddaya gonna do, sucks to be them, profits for the big guys are more important” absolutely is a moral failing.

        4. Princess Consuela Banana Hammock*

          Even in that example, the bad actor is the employer, not California’s law regarding mandatory work breaks. If your husband’s concern was additional income from tips, that indicates his employer was not providing an adequate wage to fairly compensate him (even at his base rate).

          To clarify, though, if you are non-exempt, if you work at least 3.5 hours, you must receive a 10-minute, paid break for every 4 hours of a shift (ideally taken halfway through that 4-hour period). You must receive a 30-minute meal break if you work more than 5 hours (so your husband’s break requirement kicked in at 5:01 hours into a shift). If you work 6 hours, you can mutually agree to waive the mandatory meal break (but not the 10-minute break). If you work more than 6 hours, you must receive both a 30-minute meal break and a 10-minute break. [I’ve linked my name to the Labor Commissioner’s guidance]

    2. Sloane*

      Yeah I think a lot of employees think that there’s some kind of back-stop that’s there to protect them from whatever they find unpleasant, either the law or HR. Unfortunately the law has only a few things they actively protect in general (see Alison’s post above) and HR is there for the company, not you. Somebody in a thread this week said “quit or cope” and there’s a lot of truth in that.

      1. CrazyEngineerGirl*

        There do seem to be a lot of people that think fairness and legality are linked somehow. “This isn’t fair!” and “This isn’t legal!” are definitely not interchangeable. Lots of thinks aren’t fair, few things (work wise) are illegal.

        “She just stopped bringing in cupcakes! I’ve gotten used to getting those cupcakes! I plan my Friday lunch budget around eating 3 of those cupcakes! Surely she can’t just stop bringing the cupcakes! This must be illegal, right???”

        1. Sloane*

          This is a really good point. People feel that they’re being treated unfairly, which may be completely true – but it doesn’t mean there’s a law about it. Many unfair things are legal.

          1. IANAL (I Argue Nightly About Llamas)*

            One of the most important lessons I’ve learned in law school is that justice, equality, and fairness are all very, very different animals.

      2. Jadelyn*

        *sigh* I need to have a copy-paste message I can just insert whenever someone pulls out the “HR is there for the company, not you!” line.

        1. Ego Chamber*

          I don’t see the issue with it. It’s nothing damning to say HR is there for the company. The CEO isn’t “the company,” management isn’t “the company,” the company is its own entity, separate from any of the employees that are part of it: HR is there for employees to the extent that it benefits the company.

          The nuance that gets ignored in this argument is that being for the benefit of the company doesn’t make HR anti-employee. A lot of things that benefit the company overall also benefit employees (f’rex: paying a fair market wage, competitive benefits, keeping people safe, following laws).

          Disclaimer: This assumes a functional workplace. In dysfunctional workplaces, HR is a shitshow and that’s probably why so many people take a confrontational stance.

          1. Princess Consuela Banana Hammock*

            Sure, but that’s not how most folks deploy that line, which is why it makes Jadelyn sigh. They deploy the line to imply that HR departments exist to cover up an employers’ illegal activities, not that they exist to proactively manage compliance and mitigate risk by ensuring the employer avoids unlawful behavior.

            1. Gazebo Slayer*

              Sadly there are plenty of dysfunctional companies where HR *does* cover up illegal behavior, as shown in the discussion above. I know they’re not all like that, but there’s a reason for all the distrust.

            2. Jadelyn*

              PCBH, you hit it exactly. Especially when people explicitly say, not just “HR is there for the company” (which might make me twitch slightly but I wouldn’t say anything about it), but “HR is there for the company, *not you*” – it sets up a false dichotomy and introduces an unnecessary level of adversarial feeling between HR and employees. That’s why I get annoyed at the way people use that line.

              Regardless of any nuanced reading of the actual line, the way that line gets used in most conversations sets up “the company” to mean “management” as a separate entity inherently opposed to labor’s interests. Ideally, in a good company with strong HR support, we are here for *the entire company* – the management, in that we keep them from doing illegal stuff and help guide compliance with sometimes labyrinthine labor laws; the employees, in that we make sure the company abides by said labor laws and doesn’t infringe on the employees’ rights. And HR should be there to support the workers as much as management when there’s a conflict.

            3. Ego Chamber*

              “They deploy the line to imply that HR departments exist to cover up an employers’ illegal activities, not that they exist to proactively manage compliance and mitigate risk by ensuring the employer avoids unlawful behavior.”

              Okay, that makes sense, I totally get that. Also, saying HR “proactively manages compliance and mitigates risk” explains to me exactly how a functional HR department is supposed to work—I’ve just sadly never had the pleasure of working somewhere that had a functional HR department, so I’m trying to explain something I only know about in theory and based on college courses, which I probably ought not to do.

              Apologies all around. :)

              1. Jadelyn*

                I’m really sorry to hear you’ve had what sounds like some really terrible experiences with dysfunctional HR departments – on behalf of my profession, I apologize, it should not be like that.

                Ideally, a good HR team will, as PCBH says, *proactively* manage compliance – meaning, they’ll make sure management knows what they’re not supposed to be doing BEFORE management does the things they’re not supposed to do. And if a manager pulls some shit, HR should be able to step in and get them to stop doing it – both because it’s a risk to the company for liability purposes, but also because it’s morally wrong. A really good HR team will also proactively help develop organizational culture to make the company a good place to work, ensure that the company offers fair and competitive pay and benefits, support professional development and offer training opportunities, and be a resource for the employees in general. But those are higher on the “hierarchy of needs”, as someone in comments here once described it – compliance is the base of the pyramid, without which you can’t do much else, but there’s more that HR can and should be doing beyond just ensuring compliance.

                1. Ego Chamber*

                  That also makes a lot of sense. Thank you.

                  I think the issue with HR at my last toxic workplace was that they hadn’t even managed that bottom step of the pyramid, so they were just like You know what? F*ck it. when it came to anything more advanced.

                  Also, no need to apologize. You didn’t do anything and there’s no logical reason for why you should apologize for your profession. (If we’re going to do that, I’ll be here all day apologizing for bad customer service, and I don’t have time/I’ve got homework to do.)

          2. paul*

            I also think a lot of it comes from this misguided expectation that HR can over rule the CEO/board. I see a lot of folks assume that if HR doesn’t literally force a fix, that they must not care. Which baffles me, because in no org chart I’ve seen is HR actually in charge.

            1. Ego Chamber*

              “I also think a lot of it comes from this misguided expectation that HR can over rule the CEO/board”

              I understand the frustration when HR is actually protecting someone who’s doing something illegal or against company policy (because these things are very similar in the employee mind). In that case it’s because the employee went to HR to do something that should by all rights be done—either by real law or “company law”—and then they realize HR is more like a crossing guard than a cop, and that’s pretty of disillusioning.

              Ideally, HR would always enforce the actual law (by reporting illegal activities), but HR can be (illegally) retaliated against too, and if the company gets shut down for constant labor violations, HR is in the unemployment line with everyone else, so I kind of get it when they don’t report known discrimination/stalking/violence/whatever to the labor board or the police (respectively), even if it does piss me off because everyone should be better than that.

    3. Murphy*

      I think people want to know what position they’re in when they talk to their employer about the issue. If they can come at it from a place that’s “You legally cannot do what you’re doing” then that is very different from having to appeal to those above them to change their ways or otherwise contemplate quitting their job.

      2. Elsajeni*

        Yeah, I think a lot of people are basically asking the question Alison has translated it to here — “Can they do that? Can I make them stop it???” It’s just that the only way that occurs to them that they might be able to make their boss do, or not do, anything is if there’s a law about it.

    4. Shadow*

      Lots of people think the legal and fairness are one in the same and it’s absolutely far from the truth

    5. tigerlily*

      I think that’s a bit of a mis-characterization of most people asking if something is illegal. I think very rarely on this site has that question been a precursor for “can I sue?” At my current place of employment, I have come across several practices that were actually illegal (like telling people we don’t pay overtime, or telling non-exempt employees that work they do “on their own time” doesn’t count as work and therefore won’t be paid). I have no intention of suing, but I would certainly want someone who is more knowledgeable than me in employment law to confirm for me that something is in fact illegal before I go to my director and say “hey, we need to change this policy.”

      1. Llama Wrangler*

        Most, but not all. I have an employee who for years has supplied many people here with details of one angle or another for suing her husband’s employer or getting him out of working on trumped-up workers comp disability claims. She was successful on disability, at least in the short-term, and unsuccessfully sued on the workers comp claim.
        Now she is ill but it’s not work related. Instead, she keeps trying to claim we are not being accommodating though we have never denied on of her extensive requests for time off that go above and beyond any time off she had, paying her after her PTO was exhausted, as well as changing and reducing her hours so she could recover and go to various medical appointments (and having to hire someone else in order to do so). Now she is going for the stress angle, saying that things such as notifying her of mistakes that she has made (amongst other things) is causing her stress which is exacerbating or delaying her recovery, all the while being one of the most difficult, abrasive and demanding people I have ever worked with in my 30 years of employment.
        She’s on a PIP, we’re dotting every i and crossing every T but my boss (the owner of the company) is hesitant to fire her due to him being way nicer than he should be and being afraid she will sue.

  5. extra anon today*

    What really stinks is when there is a sweeping change that you know is legal (but crummy) and you want an exception but it’s a department or company-wide change and your direct bosses have no control over it. Right now, I am in a situation where I just started my job in May. I am not allowed to take ANY time off (not even an hour) until Dec 1 because of contract rules. Ok, fine, I agreed to that when I took the job. But they just announced yesterday that no one in our department (the largest one) can take ANY time off from Nov 1 of this year to March 1 of next. I already asked my boss and grandboss and they were both basically like, “well it sucks but there’s nothing we can do.” I love it here but I have mental health issues and it would be nice if I could take time to go see a doctor (did I mention this includes sick time?). I mean, I theoretically could stay home if I was sick but they wouldn’t let me use my accrued sick time and they could fire me for it if they wanted. It is really disheartening.

    2. Lady Russell's Turban*

      Ok, the no taking sick time thing DOES seem illegal if your company is large enough to be under FMLA. But I am not a lawyer or in HR.

      So, will they fire anyone who gets sick and needs time off? That seems counterproductive if the no-time-off is in place because there is a big work crunch and they need all hands on deck. It takes time to replace and train someone.

      1. fposte*

        FMLA only covers specific needs for medical leave; it doesn’t reach to most “home with a bug for a day or two” illnesses.

        1. Jadelyn*

          However, if you’re in California (or any other state with sick leave laws, though I don’t know any others who do off the top of my head) they legally can’t prevent you from taking your 3 sick days/year. Which is separate from FMLA situations.

        2. Lady Russell's Turban*

          But the commenter says she needs to visit the doctor because she has mental health issues. Where I work we allow such visits to be taken as part of our sick time and if they exceed that, either for themselves or a family member, time off without pay can be taken under FMLA. My employer is usually reasonable and is fairly generous. One co-worker was able to use FMLA to take her grandmother for monthly medical appointments.

          1. fposte*

            That’s great of your employer, but what your employer permits is not the same thing as what the law requires; just because you have to have regular doctor’s appointments doesn’t mean a condition meets the standards of a “serious health condition.”

            And it’s a moot point, since the OP isn’t eligible for FMLA until she’s worked there for a year anyway.

            1. Ego Chamber*

              Would the ADA potentially come into play at all?

              My immune system tries to kill me a few times a year and at my last job (which was toxic and dysfunctional, to the point that I don’t know whether a lot of the things they did were actually legal) would recommend I pick up ADA paperwork—and also request intermittent FMLA—whenever I was out for more than 2 days in a row.

              1. Princess Consuela Banana Hammock*

                The ADA could definitely come into play, but extra anon today would have to demonstrate that their mental health concern rises to the level of a disability within the meaning of the ADA (not all chronic medical concerns impede “major life activities” enough to qualify for coverage). It’s also possible that they would not receive the accommodation that they want (paid time off, or use of their sick leave, for necessary medical appointments).

      3. SusanIvanova*

        I worked at a place where the CEO declared that nobody could take vacation time because one team was behind schedule. Quite aside from the fact that the schedule had been imposed on them over their objections that it was impossible, putting those restrictions on completely unrelated teams just made it more clear that the CEO was clueless and petty. My grandmother was about to have hip replacement and I’d made plans to go be her hand-holder, and my manager just said “go, I’ll deal with this.” If there was fallout it didn’t hit me.

        1. Jadelyn*

          That’s an awesome manager, right there. I really admire managers who step up and use their position to shield their employees from BS like that.

    3. paul*

      Holy crap that is nuts. I get no vacation-it sucks but I can get it. But no sick time?

      Flu season’s gonna suck.

    5. Princess Consuela Banana Hammock*

      Gosh, what a counterproductive and crappy policy. I’m really sorry you’re facing this. I’m tempted to trouble-shoot, but I suspect you’ve already explored and exhausted your options :(

  6. cheeky*

    I’m in a professional union in my (white collar) job and am a union steward. You know what unions are GREAT for? Empowering employees to push back, negotiate, and compromise on these kinds of issues, within a legally protected framework. The law allows ALL kinds of crappy things that employers do. Union contracts fill in those gaps.

      1. the gold digger*

        I was telling a co-worker about the shareholder revolt led by the Teamsters (as stockholders) at McKesson. They were able to vote down the executive team pay raises.

        My co-worker said, “They’re just jealous.”

        My jaw dropped. I didn’t think of the perfect answer until that night (of course). What I should have said to him was, “Oh! I see the problem. You think you’re management. You’re not. WE ARE LABOR.”

        2. Princess Consuela Banana Hammock*

          What adult responds to a major concern regarding compensation and investment in employees with, “they’re just jealous”? Is your coworker on the executive team? (Those are rhetorical questions; I am just smh.)

      1. I'd Rather not Say*

        I’m not in a union, but I often find the anger against them frustrating for these sorts of reasons. I want to ask people, “why don’t you channel that energy you’re using being mad at unions into asking your employer to treat you better (fairly), instead of resenting those who have these basic things everyone should have?”

      2. CrazyEngineerGirl*

        I believe the 5 day 40 hour work week with 2 day weekends was started/popularized by Henry Ford in the 1920s. Nothing to do with unions.

          1. Turkletina*

            Personally, I do not trust a source with the tag line “The facts are that when true capitalism is practiced, everyone flourishes”. Henry Ford did implement a five-day workweek in his factories, but unions were instrumental in spreading/normalizing the idea.

          3. Princess Consuela Banana Hammock*

            It is extremely false. There is ample historical evidence to the contrary. Do folks just pull this from Google? I’m trying to figure out how folks ignore 50+ years of labor history and concrete legal developments so that they can attribute gains that people obtained by literally putting their bodies on the line to a corporate executive.

            1. Ego Chamber*

              Like most examples of “common knowledge” I can think of and also know is demonstrably untrue, I assume it’s a case of memetics backed by a good marketing team. :(

        2. Rebeck*

          Maybe in the US, but in Australia it was started by stonemasons working on the new University building in Melbourne downing tools and marching into the city to protest their working conditions, calling for 8 hours work, 8 hours recreation and 8 hours rest. In the mid 1870s, I think. Or possibly earlier. Which became the union movement, spread to shearers, and eventually turned into one of our two major political parties. Nothing at ALL to do with Henry Ford.

        3. Jane*

          No, that is not what happened. The 40 hour workweek was fought and died for by union workers over multiple generations. Ford was one of the employers that figured out it was in his best interest to comply with labor’s demands. We also won the legal right to organize right around the same time.

          1. DArcy*

            Ford was anti-union in the only positive way: “I’ll make sure my workers don’t unionize by proactively making sure they have nothing to complain about.”

            But Ford was a historical blip — his ideas didn’t catch on, and unions had to fight tooth and nail for those worker protections.

        4. Princess Consuela Banana Hammock*

          You’ve said this before, and it’s not true. It’s demonstrably false, and folks have debunked it in previous threads. All of the things you’ve noted—weekends, 5 day/40-hour week—are direct results of labor activity that predates the 1920s and Henry Ford. I’m not sure why you keep repeating this statement when it’s untrue.

  7. Jack*

    I love when a story comes out about someone getting fired for something the posted on social media or said publicly, and people start screaming about how you can’t fire someone for exercising their right to free speech. Uh, no, you can be fired for what you say on or off the job.

  8. Gabriel Conroy*

    Along with Murphy and Tigerlily above, I’d want to reconsider what people are really asking when they ask the “is this legal?” question. I’ll say that that question frustrates me for two, almost mutually contradictory reasons.

    The first reason relates to to what a few here have said: the question reflects an belief that what is unfair is necessarily illegal when that correlation is not usually the case, or….that people are really asking something else, like, “is this right?” or “is there a strategy I can pursue to stop this practice?”

    The second reason I get frustrated, though, is that the behavior can arguably be illegal, or that there is a good reason why a non-lawyer layperson might believe something is illegal even when it’s legal. Take questions about family initiated by a job interviewer. It’s probably technically legal (in the US) to initiate such questions, but it’s not surprising that some interviewees interpret such questions as a backdoor way to discriminate over marital status or perhaps gender status. Simply saying that something is, on the surface, legal doesn’t address the underlying reasoning–and therefore the underlying concern–about why the person asked the “is this legal?” question in the first place. (I’m not criticizing anyone here. Allison seems to always address the technical legal issue as well as the underlying reasoning behind the question. And while I only rarely read the comments here, they seem mostly to do the same thing.)

  9. Amethyst*

    When I was a kid (I’m 29 now), I worked a summer job as a gate guard at a private lake/camp ground. Worked there from age 14 to age 20. The entire staff (lifeguards, gate guards, maintenance) was comprised of teenagers and college students, except for our boss. The gate guards worked in two shifts, an 8-hour shift and a 6-hour shift, so the lake was open from 8 a.m. – 10 p.m. The kids working maintenance got an hour lunch break, the lifeguards got either a half-hour break or a 45-minute break (not entirely sure), and the gate guards…. we got 15 minutes. Didn’t matter whether I was working the 8-hour shift or the 6-hour shift, I got a 15-minute break (which was just enough time to walk to the bathroom on the other side of the grounds, pee, and come back). Sometimes I would take an extra 5 minutes because I would be stopped by a lake member or a lifeguard, and would get scolded whenever I did it. Considering this was in NJ and I was a minor for most of my time working there, was this illegal? I’m pretty sure the answer is yes, given that I’ve previously (i.e. a few years after I stopped working there) looked into NJ labor laws as applied to minors, and I’m also pretty sure that those laws were in effect during the years I worked there.

    I’m not interested in “getting back” at that employer (it’s been 9 years since I last worked there, and besides, what would I possibly demand?) but I feel bad for the kids working as gate guards there now, who are most likely working under the same conditions as I did. Should I reach out to the board that runs the lake and point them to NJ’s labor laws?

    1. Kms1025*

      Amethyst – interesting question. I thought there were federally mandated break periods, something like ten minutes every two hours, but I am not absolutely positive? Maybe someone else here knows?

      1. Ego Chamber*

        There are not. Federal law in the States does not mandates any rest or meal break periods. State laws vary, a lot, usually dependent on what industries are most common in which states—the ones that have a lot of factory work tend to have more specific laws, like “half hour meal break near the middle of the shift,” etc. These laws are the same for adults and minors, because in the States apparently our protection of children only extends as far as barring them from doing hazardous work and staying out too late on school nights (wtf).

        Not a lawyer, but the DOL pages are pretty concise.
        Rest breaks: https://www.dol.gov/whd/state/rest.htm
        Meal breaks: https://www.dol.gov/whd/state/meal.htm

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