The managers and directors at my office threaten to fire employees for things that are personal and non-work-related. I’ve been called stupid and had something thrown at me by my boss. The president of the company travels 99% of the time, so these higher-ups do not have to answer to anyone. I’ve looked up workplace bullying to find that it does not fall under Title VII, nor is it acknowledged at all. How can employees defend themselves against these threats? Why is bullying not allowed in schools but is allowed in the workplace? What gives managers and directors the right to viciously attack employees? Can you help? Thanks so much.
— Standing Up, Connecticut
Hey, before you read my answer to this week’s question, I want to highlight the release of our new two-tiered website, FixMyJob.com and OrganizeWith.US. I’ve previewed the site in this column before, but now we’re officially up and running. Check it out and let me know what you think. And send the link to that friend or neighbor who you know is dealing with a problem right now, because he or she doesn’t have to go it alone.
It’s astonishing to me whenever I see adults who haven’t outgrown bullying. For some people, the whole reason to have a position of power is that you can mistreat people under you. When it’s the person who sets your schedule, your assignments or your pay, it’s especially intimidating.
No one deserves this treatment. Unfortunately, you don’t have to look far or long to find other examples of this far-too-common problem. Judging from the number of submissions on this topic as well as what I’ve found just talking to workers directly, it feels like workplace bullying is practically an epidemic. According to a 2010 survey by the Workplace Bullying Institute:
35% of the U.S. workforce (an estimated 53.5 million Americans) report being bullied at work; an additional 15% witness it. Half of all Americans have directly experienced it. Simultaneously, 50% report neither experiencing nor witnessing bullying. Hence, a “silent epidemic.”
You’re correct that Title VII—the federal anti-discrimination law—does not outlaw bullying or harassment in general, only harassment that is based on characteristics like the employee’s race, gender or religion, among others. However, that does not mean it is legal for employers to treat employees this way. The Occupational Safety and Health Administration (OSHA) recognizes that workers have a right to a workplace free of violence, and that workplace violence includes both physical and verbal abuse. In some states there’s a growing push to stop this kind of abusethrough legislation.
The important thing to remember is that you’re not alone. From the sound of it, you’re far from the only person getting this mistreatment, so it’s worth thinking about talking with other employees about what they’re experiencing. And it’s not a bad idea to keep detailed notes of what’s happening and who witnessed it. The biggest advantage a bully can have is the belief that his or her victim will keep quiet.
Don’t forget, most employees in the private sector have the right under the National Labor Relations Act to join together in demanding a stop to this abuse. And you can start by visiting FixMyJob.com.
Tags: connecticut, Dear David, organizing, Rights At Work, safety
My son works part-time at a shipping/receiving business. He was hired by an outside trucking company to work there. His co-workers who are actual employees of the shipping/receiving business are full-time. They are told that they cannot receive time-and-a-half for overtime because the company is from Tennessee and the contract (not a union contract) was signed under Tennessee rules. The company is in Georgia. (My son is not affected because he is hired from the outside and only gets about 32 hours at most per week.) I’ve never heard of this before. Is that true, or is the employer ripping them off?
— Concerned Parent, Georgia
That’s a novel excuse, but not a very good one.
Whether or not Georgia law applies, the vast majority of workers in the United States are covered by the federal wage and hour law, the Fair Labor Standards Act. States can provide stronger protections for workers – such as a higher minimum wage – but they cannot prevent federal law from applying to workers in their state covered by the Fair Labor Standards Act. Also, workers cannot give uptheir right to overtime pay under the Fair Labor Standards Act through the terms of their employment contract. As for the state laws, as a general rule states apply their wage and hour laws to any employee working in that state, regardless of where the employer is based.
Here’s something else about overtime that will probably interest you. There’s been a move recently in the U.S. House of Representatives to change overtime laws—purportedly to give workers more “flexibility” by offering comp time in lieu of overtime. Guess what—all the “flexibility” goes to the employer, and ultimately what it would amount to is an interest-free loan from you to your boss. The really insulting thing is how these congressional Republicans argue that trading real overtime pay for hours your managers might let you use at their convenience is somehow pro-worker. (Here’s a great video that explains everything you need to understand about the inaptly named Working Families Flexibility Act.)
It’s not going anywhere right now—President Obama has said that he would veto the bill if it makes it to his desk—but watch out for it. This is another example of a power grab by employers who have too much power over workers already. Think it’s time to start leveling the playing field? You might want to point your son here.
Tags: Dear David, Georgia, organizing, Rights At Work, workplace
I have been an employee at a private nursing home for 24 years. I now work part-time for five days in a two-week period, 7.5 hours per day. When my scheduled day to work falls on a holiday, I do not get paid for that day. Therefore I lose a day’s work and only get four days in that pay period. Why must I lose a day’s work because it is a holiday? It just does not seem fair to me.
— Expensive Holiday, Ohio
This is a pretty important issue—after all, you rely on having that consistent income, and getting a day without pay thrown at you is a big deal.
This is one of the problems with employers having all the say on what’s considered “fair.” Unless you have a contract or union agreement that says otherwise, it is probably legal. But “legal” doesn’t mean “fair.” While the federal government and most public employers recognize certain holidays and provide either paid time off or premium pay for their employers on those days, there is almost nothing required by statute for private sector employees with respect to holidays. Federal wage and hour law and the vast majority of state laws do not require private sector employers to treat holidays any differently than any other days. Unless you have an individual or union contract guaranteeing you a certain number of hours per week, or specifically requiring paid time off for holidays, you can be scheduled off without pay. Also, except in a small number of states (such as Massachusetts and Rhode Island), private sector employees are not entitled by statute to extra pay if they are required to work on a holiday.
So who gets to decide if you are going to be paid for a holiday, and who gets to decide what your schedule looks like? It’s not clear if you are working this schedule because it’s your preference or because that’s the only schedule your employer will offer you despite your long service.
Sometimes employers hold back holiday pay or other benefits as an incentive for working full-time or a certain number of hours. And too often employers are manipulating workers’ schedules so they don’t work enough hours to be eligible for those kinds of benefits. Even if that’s not what’s happening here, don’t you think 24 years working at the same place ought to come with some input into your working conditions? That might be a good question for you to take to some of your co-workers. While you’re at it, you might want to ask them if there’s anything else about their jobs they’d like to see get fixed. If enough of you end up on the same page, this might become an opportunity for you to address several issues at once—together.
Tags: Dear David, Massachusetts, Ohio, Paid Sick Days, Rhode Island, wages, workplace
I worked as an independent contractor for a medical transcribing company while also contracting for other companies. This transcribing company was bought out by a huge conglomerate company. They then decided to offer all contractors full-time jobs, but at the same amount of money we were making as contractors. The main problem is that I then couldn’t contract with other places, so my income took a huge hit. Are there laws to protect me from this? Shouldn’t they have had to at least hire us at the hourly rate we were being paid as contractors?
— Contracting, Tennessee
In this economy, with both mergers, contract and temporary work fairly commonplace, it can be hard to keep track of who you even work for—and when the changes come at your expense, as seems to be the case here, it’s especially frustrating. I’ll assume, since you say here that you can’t contract with other places, that there is also some kind of “non-compete” clause in your employment contract which wouldn’t be at all unusual.
Working as an independent contractor can come with some real challenges—including no employer-provided unemployment insurance or worker’s comp, and there can be issues with fair pay and other workplace protections. For some, the trade-off is worth it for the flexibility and independence that it offers—like the opportunity to pick up additional contracts. However, it sounds like your employer wants ALL of the flexibility and control for itself.
Your rights in this situation are going to be determined by the terms of your contract. Absent a contract—individually or as part of a union—your employment is “at will,” and the employer can set whatever terms you’re willing to agree to (as long it complies with minimum wage and overtime laws and doesn’t illegally discriminate. If you had a contract with the former company for a certain term, then, depending on that contract’s terms, you and the new owner might have an obligation to continue abiding by the terms of your contract.
Once the contract expires, however, or if you or the new owner has any grounds for terminating the contract, you are left to whatever terms you are able to negotiate, or that you and your fellow employees are able to bargain for collectively.
Your employer has made a unilateral decision that benefits the company at your expense—an illustration of what is so skewed about the power dynamic between workers and employers in this country. It doesn’t have to be this way. Do you know any of your “new” coworkers? If not, this might be a good time to start talking to each other, gathering information and comparing notes. I’d bet many of them have some of the same questions.
Imagine what could happen if you all got together, decided on your top concerns together, and then built a plan to address them to your employer together. You don’t have to just wish for it—we can help you get there at FixMyJob.com.
Tags: Dear David, fix my job, Rights At Work, Tennessee, workplace
My employer may have shorted my pay over the past three years by more than $9,400—yet I am told the only way I can recover the money is through a civil lawsuit. I live in Ohio, but the company is in Georgia, so I have to file the lawsuit in Georgia. Any suggestions or alternatives you can offer?
— Coming up short, Ohio
When somebody gets their wallet stolen on the street, or jewelry and electronics stolen from their home, everyone gets that it’s a crime. But what if someone steals from your paycheck? It’s called “wage theft,” and it’s a growing problem for many workers.
A civil lawsuit is an option to recover unpaid wages—but it’s not the only option. Federal wage and hour laws apply to nearly all employers in the United States. Additionally, states may put in place and enforce higher wage and hour standards and stronger protections for workers in their state. Therefore, victims of wage theft—or any other wage and hour violation—should explore both state and federal remedies that might be available.
The Department of Labor has a Wage and Hour Division, which accepts and investigates complaints about wage theft. Wage and hour enforcement was a priority of the previous secretary of labor, Hilda Solis, and organizations that work against wage theft are encouraged by Thomas Perez, the nominee for the next secretary of labor. Additionally, several states have administrative agencies that investigate and prosecute wage and hour violations—California even has officers who investigate wage and hour violations for possible criminal prosecution.
The first step in protecting yourself from wage theft is to keep REALLY good records of your pay, hours worked and other information. Here are some examples of the kind of information to track.
In many cases a legal approach or lawsuit can address specific wage theft violations. But there’s another important element here—strength in numbers. Workers who are organized in unions have the protection of the law AND a collective bargaining agreement that makes sure they’re paid fairly and that there’s a remedy available when they’re not.
This is an issue that affects a lot of people, and organizations like Interfaith Worker Justice are active in raising awareness and helping people affected by wage theft.
Going to court is an option in an individual case, but we can’t just rely on lawsuits to fix the larger problem of wage theft. In our workplaces and in our communities, we need to come together to make sure companies are doing the right thing and paying their workers what they’re owed. Theft is theft, and we need tougher laws to deal with it.
Tags: Dear David, Rights At Work, wage theft, workplace
I have received an unsatisfactory review and have been told verbally that I have six months to try to do better, and then I might get a “reward.” My job does not seem to be in jeopardy because my boss didn’t say I have six months to improve or be fired. Yet I’m not sure I know what would count as improvement in his eyes. Nothing has been written down; there are no specific benchmarks or measurable goals. I have a sense of some things I can do because of the things he talked with me about, but leaving it up in the air like this makes me nervous. What should I do?
— Unsatisfied, Idaho
Imagine for a minute that you’re taking an archery class. On the first day, your instructor hands you a bow and some arrows and says, “Hit the target, and you’ll win a prize.” The only problem is he doesn’t tell you where the target is, so you don’t even know which direction to shoot. After taking this class for a few weeks, you’ll get frustrated, and maybe someone else will get hurt. Meanwhile, you almost certainly won’t win any kind of prize. And you definitely won’t get any better at archery.
That’s the situation your boss is putting you in: he’s telling you to hit a target but not telling you where it is. And, as you’ve said, you can’t just walk out like you could if you were taking an archery class with a bad teacher. This is your job, and if your boss expects you to get better, he needs to tell you what direction you need to be shooting in.
Now, you’re right to be nervous about what’s going to happen. Many people think that they have an automatic legal right to their jobs, but the problem is that for the most part, there isn’t one. And this goes for your right to “rewards” as well. Your question illustrates the danger of being—as most American employees are—an at-will employee.
At-will employees are totally at the whim of their employer in terms of promotions, demotions, transfers, raises, increases or decreases in hours, and even being fired. Shocking, isn’t it? Indeed, because some courts recognize “implied employment contracts,” at-will employers have an incentive to be vague in their requirements and expectations so that an employee cannot claim he or she was promised a reward or continued employment if certain conditions were met.
It doesn’t have to be this way. In some states, employees who have completed a probationary period can only be fired “for good cause.” Most union contracts address this issue directly by including a clause requiring “good cause” for discipline or firing. Here’s an example of how a union would lay out good cause. Another benefit of collective bargaining agreements is that they can be specific about things like raises and increased vacation time as a reward for tenure and good performance. With an agreement like this, you’d be more likely to get clear standards about what’s expected of you and what you can expect in return.
Chances are, you are not alone in getting this kind of treatment. Have you talked with your co-workers about your situation? Is anyone else wondering about their job security or eligibility for rewards? By reaching out, you may find some partners for an effort to reduce everyone’s uncertainty.
In the end, if a manager wants you to improve, it’s his or her job to tell you what improvement looks like. Going to work shouldn’t feel like you’re shooting an arrow at an invisible target.
Tags: Dear David, idaho, Rights At Work
I have been working with my company for more than six years. Conditions have become unbearable lately. The workload has increased, but reliable assistance in the form of additional workers hasn’t followed. The money we get is not worth the work put in. Our office is hot all the time despite complaints about it. We’re scheduled to work extra time without our consent. We are all beyond frustrated with our work conditions.
— Had it up to here, Kansas
You’re totally right to be upset about the way you’re being treated.
First, it’s important to point out that getting overworked isn’t just an inconvenience—it’s a serious and growing problem. It’s a trend across the economy as companies try to do more with fewer employees. (Read this great Mother Jones article for an in-depth look at the issue.)
Did you know that the average worker today works 181 hours per year more than they would have back in 1979? This escalation is slow but steady, and it’s reached the point where a worker today is working the equivalent of 4.5 additional weeks per year. So where did the reward for all of that extra productivity go? Not into your pocket.
Any one of the complaints you list here would be enough for most people to get frustrated at work. Add them all together and it’s no wonder you have reached a point beyond frustration. But the good news is that it sounds like you already know that you are not alone. So seize the day! You and your co-workers can help each other.
One idea is to survey your co-workers to find out what’s bothering them the most. Asking open-ended questions is more likely to surface what others think and help everyone understand what’s most important. If you are going to do something about it, it’s helpful to know why it matters to each and every one of you. It’s also a good idea to keep a record and not to use your work computer or email.
It should go without saying, but: you are also probably better off not to do any of this around your boss. There will be a time to talk to your boss, but it’s best not to tip your hand too early.
Once you know where everybody stands and have a strong majority all on one page, it will be time to decide what to do next. Here’s my recommendation: check back here. In just a few weeks we’ll be launching some online tools and resources you can use to review options for next steps. You will be able to walk through steps you can take to make your life at work better.
Tags: Dear David, fix my job, kansas, Rights At Work, workplace
I work for a large national retailer. How do you get them to remove caps on wages? I’ve been told that it’s “not a cap,” and that I just “chose not to advance”! There are not enough management positions for everyone. I have worked for the company for 26 years and now I will never make any more money. Is that even legal?
- Not living better, Kansas
It’s understandable that it feels like your wages are actually capped. After all, you’ve been with the same company for quite a while. That’s the problem you face when the power to decide whether or not you get a raise rests only with the boss.
In a way, there really is a cap on wages. And it’s not just happening to you. Worker productivity has increased steadily for the past forty years but wages have not. We’re working harder and creating more value, but we’re not getting any of that back. Corporations and rich CEOs are so out of touch that they no longer feel like they should have any responsibility to share the increased profits they earn. I know I keep citing the same statistics, but I think they’re key to understanding what change is needed.
Your prospects for a raise shouldn’t just be a limited number of management positions—especially when your advancement is completely in your boss’s control. Part of the reason why we’ve seen this rise in inequality is that workers and communities accepted that it just has to be that way. I say, no way! This is a big-picture problem, but one we can take on if we band together—like workers for one national big-box retailer or fast food workers in New York City have been doing. There is plenty of room even in this economy to treat workers with respect and dignity, and to do so through a fairer share of the profits they create. Ready to do something about it? You definitely aren’t alone.
Tags: California, Dear David, kansas, Oklahoma, Rights At Work, wages, Walmart
In my office there are three of us with exactly the same job description. There are two women and one man. None of us do everything listed in the job description, but the man is treated as a professional and the women are treated as the clerical staff. The women are the ones who have been given the additional duties of answering the phone, opening the mail, creating the files, obtaining the information on new vendors and updating the computer. We recently had a meeting where additional clerical assignments were given to the female employees, but the man was not included. This just doesn’t seem right. I have contacted the HR department, and the answer I was given is that the manager can assign any task he wants to anyone (and all other duties as may be assigned), and perhaps he should rewrite the job description.
— Not your secretary, Kansas
Mad Men takes place decades ago, but it sounds like your workplace is still stuck there.
This isn’t just an interpersonal issue—it could be a legal one. Here’s what an attorney had to say:
From a legal standpoint, it sounds like this could be grounds for a sex discrimination action. In general, a sex discrimination claim requires proving that an employee was treated unfavorably because of the employee’s sex. While discrimination can be difficult to prove, there certainly seems to be reason to believe that you and your female co-worker are being given less favorable (and stereotypically “female”) job duties because of your sex.
Because litigation is expensive and there would not be a lot of money at stake in a case about the assignment of job duties, you are probably better off trying to resolve this informally with management – but you should be clear that your belief is that the way work is being assigned is unlawful sex discrimination. If you are retaliated against in any way for raising this concern, that itself would be grounds for legal action. If you do ultimately find it necessary to take legal action to enforce your rights, your first step would be to file a charge with the EEOC(or a similar agency in your state).
Don’t forget these three important steps: document, document, document. In any legal situation and many other circumstances, good records with dates and specifics are vital.
Here’s something else worth noting: collective bargaining agreements often contain provisions about job duties or discrimination that would allow the union to file a grievance on the employee’s behalf in a circumstance like this, rather than requiring the employee to take the expensive step of filing a lawsuit. This is another example of the strength that comes from being organized.
Mad Men is a fun show to watch but it’s a lousy place to live. You don’t have to put up with it.
Tags: Dear David, inequality, Rights At Work, workplace
I would like to know whether it’s legal for an employer not to withhold federal taxes from your paycheck.
— Not Withheld, Missouri
Indeed, it is tax time, and I’m sure there are a ton of questions out there. I know I’ve got mine. For instance: why is it that the very rich and corporations don’t seem to be paying their fair share? More on that after I answer your question…
As a general rule, employers are required by federal law to withhold income, Medicare and Social Security taxes from your paycheck, and most states also require the withholding of state income taxes.
Admittedly, it can get complicated—it’s all too common to be in a situation where it’s difficult to tell if a person is an “employee” or an “independent contractor.” But, in most cases, they do need to be withholding taxes for you. If your employer is improperly failing to withhold income taxes, you can file a Form SS-8, which is a request for the IRS to determine whether you are an employee or an independent contractor. Be aware, however, that there is no way of filing this form anonymously.
So while we’re on the subject of taxes, it’s hard to fill out your tax returns without getting frustrated about this: over the past four decades, the biggest corporations have seen their effective tax rates fall fast. Last year, the 10 most profitable corporationspaid an average tax rate of 9 percent. Part of this is because corporations are shipping more of their business overseas to avoid taxes. And that’s not all…
A bigger share of the economy is going to CEO pay, too—where CEOs made 42 times what their workers made in 1980, now they make 380 times what their workers make. When it’s time to pay taxes, top executives and finance-industry millionaires are able to keep more of what they make than you do because the tax code treats income from investments very differently than it does income from work. If you want to really get steamed, check out the so-called “carried interest loophole” that lets leaders in the private-equity and venture-capital business pay literally billions less in taxes than they should.
I don’t mean for this to become a rant, and I know that this isn’t necessarily a problem you face at work, but it’s certainly one that affects all working people. We’re getting a smaller and smaller share of the value we create, while big corporations’ profits are taking up a bigger share of the economy. We’re going to have to take this on, in all of the ways we can.
The good news is that when working people come together, we can actually pull things back into balance. It happens whenever people organize to get a good contract and good wages at work. It also happens when we fight for good public policy, like the new minimum wage law in Albuquerque, N.M.
Whether it’s in your workplace or at the voting booth, coming together with other working people is the only way to counter the effects of big money.
Here’s hoping tax season doesn’t drive you too crazy. Instead of getting frustrated, we all need to get mobilized. That starts by understanding that we can, and should, ask for more.