Dear David: How To Celebrate National Boss’s Day

There seems to be a holiday for everything, even when it’s not totally necessary. Take, for instance, National Boss’s Day, which took place on Wednesday. Boss’s Day, inaugurated in 1958, is “a day for employees to thank their bosses for being kind and fair throughout the year.” Kind and fair is good, but what does that really mean? Where is the bar set, and who gets to set it? If your boss is personally very nice to you but neglects to hear you on issues that are important to you or your co-workers—is that good enough? And what if your boss isn’t kind or fair?

There are, of course, great bosses out there—people who truly treat the employees who work for them with respect and fairness, and strive to make the workplace healthy and productive for everyone. But I know from this column that there are plenty of workers out there for whom “National Boss’s Day” just adds insult to injury.

Like this man, whose boss has told him to “improve” his work but hasn’t said what that actually means.

Or this woman, whose boss is condescending to her and insults her with names like “fathead.”

(If you want a quick survey of how bad bosses can really be—check out these stories.)

For workers like these, whose ability to make a living is at the mercy of someone who abuses their power, every day is “Boss’s Day” and not their own.

The good news is that it doesn’t have to be this way. You don’t have to cross your fingers and hope for a boss to decide to be kind to you. If you work strategically and act together with your co-workers, you can begin to reset the imbalance in the boss-worker power dynamic that too often leads to bad situations. There’s some effort involved here, for sure, but that’s true about anything that’s worth doing.

Here’s my challenge to anyone dealing with a bad boss right now:

1. Step back and ask yourself some questions. What would you like to see changed at your workplace or in the way your boss treats you? Who else do you know at work who is feeling the same way as you?

2. Take the Working America “Fix My Job” challenge. Give yourself a year to experiment with the tools on fixmyjob.com, and see what you can accomplish by working together with your co-workers.

3. Keep us posted. You can do this through fixmyjob.com, where you can keep notes, ask us questions and share your progress privately. Once you’ve completed some basic first steps, you’ll have an opportunity to request a meeting with an experienced workplace troubleshooter.

I know it can be disheartening if you are dealing with a bad boss right now. Stay strong! Remember to be patient. Meaningful change doesn’t happen on its own, and it doesn’t happen overnight. But you—together with your co-workers—CAN make change happen.

Got a question for David? Submit it here.

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Dear David: Hydration Frustration

Question:

I work at a hospital as an office clerk. We currently have an interim director. There are many changes happening in our department, which has been stressful, but I’ve been “rolling with the punches.” Last week our director had a meeting in which he stated that we are not allowed to have water to drink at our check-in reception area per hospital policy. This has never been a rule in the past. While this probably would not be an issue normally, I take certain medications that require me to drink plenty of water. I went to see my doctor and got a note saying that I could have water at my desk. Now I’m worried that if I give my director the note, I will be on his “bad side” or be labeled a troublemaker. What should I do?

— Not a Camel, Iowa

 

Answer:

Under the Occupational Safety and Health Act (OSHA), all workplaces must provide drinkable water to employees, but that doesn’t mean that workers have a right to drink water at their desk.

While requirements for breaks while working to eat lunch, use the restroom, etc. vary state by state—from “no breaks for you” (which, unfortunately, is the case in Iowa) to minimum standards such as a 30-minute meal break and paid rest periods in some states—your health condition could offer you additional protection. Your health condition may be serious enough to be considered a disability under the Americans with Disabilities Act (ADA), and if so, your employer may be required to provide you with a reasonable accommodation to allow you to perform your job. Health conditions that constitute a “disability” under the ADA and the type of accommodations that are “reasonable” are determined on a case-by-case basis, but more information can be found here.

Even with protections in place for individuals who have health conditions, you’re smart to consider how your employer will react to you. The first thing to consider is whether to involve another co-worker. Is there anyone else with similar needs or concerns about access to drinking water, breaks or the like? If so, try to meet with him or her first and see if he or she will agree to go with you when you talk with your boss. A larger group would be even better. That way, it’s not just about you, but about the quality of everyone’s workplace. Not only are you less likely to be singled out, but the law provides additional protections from retaliation when two or more employees join together. This is called “protected concerted activity.”

Still, your approach matters. With another co-worker or in a group, strike a collaborative tone when speaking to your director. You could say that you understand what the rule is, but that a couple of you—or many of you—feel like the workplace would be better for everyone if you knew that when it was necessary, as in your situation, you could expect some flexibility to go to the water fountain, break area or restroom to take medication or address personal needs.

Getting together with your co-workers isn’t just about protecting yourself from retaliation. It’s also how you can shape your workplace to be happier and healthier for everyone who works there. I’m for raising the bar for everyone. Don’t you think we should set our sights higher than just meeting the minimum standards of the ADA?

Got a workplace question for David? Ask it here.

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Dear David: The Mean Kids

Question:

Dear David, I work with a group of people who bully other co-workers. They spread false rumors, try to sabotage others’ jobs and call our ethics tip line to get others in trouble. What would be your advice in dealing with the wackos?

— Pushed Around in Pennsylvania

 

Answer:
That sounds like one part “The Office,” one part “Lord of the Flies.”

This would be annoying in a middle school—but in an adult workplace, it’s incredibly embarrassing and totally unacceptable. One question: Where’s your boss in all this? It’s not just you and your co-workers’ responsibility to maintain standards of behavior at the workplace, but your employer’s, too.

Whenever you have a problem at work, often it’s a good idea to talk to others you work with to see if they share your concerns. Together, you gain some protection as well as partners to help you problem solve and organize others. However, you do have to be careful in this environment.

It’s usually not a very good idea to confront someone at work—whether it’s your boss or a co-worker bully—by yourself. It’s called “strength in numbers.” The first question I’d ask: Is there anyone else at your workplace who’s not a part of this group of “wackos,” so you can get some backup if it comes down to it? If so, I would probably start there.

Because you know there’s a risk of false rumors and sabotage, you may want to minimize your appeal as a target by only engaging with the bullies as necessary to do your job. Think about getting a locking file cabinet and a password on your computer if you don’t already have one. And, although it’s one of the easiest things to do, it’s also one of the most easily overlooked: Cover yourself! Document, document, document. It’s smart to keep good records of what’s going on, including times, dates and the names of anyone who was involved or witnessed. You could start a workplace journal, or you could email notes to yourself or another trusted co-worker. Just don’t leave your journal out at work, and use your personal email account, not a work email.

Protecting yourself, keeping a record and figuring out who your trusted allies are is the key here. That’s a good start on the path to organizing and getting your boss to take some meaningful action.

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Dear David: Underpaid for Overtime

Question:

Hi, David. I work for a home health care franchise that enables seniors to continue living at home. I’ve been told that since my employers have a “temporary part-time” tax status, they do not have to pay overtime. I work 12 hours daily at least five days a week. Sometimes we have to pick up shifts when other staff “no-show, no-call.” We work in two-week pay periods 120-140 hours and do not get any overtime. We only make $9 per hour. I eagerly await your instructions concerning this matter. Thanks in advance.

— Underpaid for Overtime, Ohio

 

Answer:

Caring for seniors is important work, but it can also be challenging—especially when you’re at it for 12 hours a day! That sounds truly exhausting, and I’m sure it’s especially frustrating when you feel like you’re not getting paid what you deserve.

As I’m sure you know, $9 an hour isn’t a ton of money. It’s more than minimum wage, but if minimum wage had kept up with the cost of living over the past 40 years, it would be $10.52. You’re doing important work, and $9 an hour is tough to support yourself—or your family—on.

It’s not just the pay scale that’s tough to stomach here. You shouldn’t have to rely on working 60-70 hours per week because your employer doesn’t pay you enough, and you really shouldn’t be forced into working 60-70 hours because your employer is apparently unwilling to staff up properly. You’re right to question the status quo.

I’m not really sure what your employer means by “temporary part-time tax status” and how it would affect overtime. It might be good just to note that, although there are several types of exemptions, the Fair Labor Standards Act overtime requirement applies to most workers, and you’ll probably want to look a little deeper into whether you are covered rather than just taking the employer’s word for it. (If you think you need professional legal advice on this question, one of the benefits of being a member of Working America is access to a free 30-minute consultation with an attorney. You can learn more here.)

Let’s take another approach to this, though. Let’s say that your employer does have some kind of exemption to overtime. That doesn’t mean you have to take it or leave it—you could take a page from other home care workers in a similar situation. I’m sure you’re not alone in being fed up, so one of your options is to get together with your co-workers and strategize ways you can get your employer to meet your interests. If enough of you share the same concerns and are fed up with low pay, long hours, short staffing or anything else—it may be time to get organized. You’ll have a lot more strength acting together than individually. You can start here: use FixMyJob.com to diagnose the problem and OrganizeWith.Us to make a plan.

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Dear David: Train in Vain?

Question:

At the company I work for, employees are expected to attend training, usually four hours per day, Monday to Friday, for 30 days (without pay). Once training is completed, they may or may not get a chance to work, because the company has brought on so many people that most of the time only 10 percent can be on the schedule at one time. There are over 3,000 of us with the same job title working for this company all over the country. So many people are getting taken advantage of every day by this company. I know at least 90 percent of us feel the same way. A lawsuit has already been started, but I feel we need to organize and create a union to stop the abuses and manipulation of this company in its tracks. Where do I go from here?

— One in 3,000, Georgia

 

Answer:

Five days a week, four hours a day, for a month? That’s a huge investment of your time, especially when the odds are that it won’t pay off. What an incredibly disrespectful way to treat people who want to work for you.

While there are certainly times when seeking a legal solution is the right way to go, many workplace problems can’t be resolved that way. So it’s good that you are already thinking about another way to address your situation. Organizing with your coworkers, as you seem to understand already, is a smart way to hedge your bets.

Determining whether an individual must be paid for “training” turns on whether the training is for the benefit of the individual or the employee, whether the individual is doing work that otherwise would be done by an employee, and other factors. While the way these workers are being treated sounds terribly unfair, unless there is a contract in place and/or the employer made guarantees based on completion of training, an employer has no obligation to schedule employees for any minimum number of hours, or at all. However, even if this is bona fide training under the standards put out by the Department of Labor, the workers should look to consumer protection laws – such as laws against false or deceptive advertising – to see if this employer’s practices run afoul of the law.

There is a silver lining to the situation you’ve described. If 90 percent of you are feeling the same way about what needs to be changed, you’ve got fertile ground for organizing. Not sure where to start? That’s why we put together FixMyJob.com and OrganizeWith.Us. Check it out, and follow the steps together.

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Dear David: Bully Bosses

Question:

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

 

Answer:

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.

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Dear David: Overtime, Over State Lines?

Question:

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

 

Answer:

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.

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Dear David: If We Took a Holiday

Question:

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

 

Answer:

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.

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Dear David: The Deal Has Been Altered

Question:

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

 

Answer:

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.

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Dear David: It’s Called Theft

Question:

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

Answer:

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.

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