Employee Rights You’re Violating Right Now

What are employee rights?

Employee rights are practices enacted to protect employees in an organization. Your knowledge of employees’ rights can help you avoid potentially disastrous pitfalls. Often, employers unwittingly violate employees’ rights, thinking their actions are acceptable. 

Here are the fundamental rights every employee should expect from an organization:

• Freedom from discrimination: Businesses must follow workplace anti-discrimination laws. According to the United States Department of Labor (DOL), employees are protected under several laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Section 503 of the Rehabilitation Act covers discrimination against hiring people with disabilities. 
• Right to a safe and healthy workplace: Employees must have the proper safety equipment and accommodations at work. Employers must provide any reasonable accommodation in accordance with an employee’s medical condition or religious beliefs. The employer must also maintain workplace safety standards, including an environment free of toxins and other hazards.
• Right to equal pay for equal work: The Equal Pay Act requires that people of all genders receive the same compensation for the same duties performed. This law covers all forms of pay, including salary, overtime rates and commissions. If any inequality is found, the employer is not permitted to reduce the pay of either worker to make wages the same.
• Right to reasonable work hours: The Fair Labor Standards Act (FLSA) regulates how many days employees can work each week, how much overtime they can work and how many breaks they must take during a given shift.
• Safety from retaliation in the event of whistleblowing: Under the Whistleblower Protection Act, an employee speaking out against corporate wrongdoing has specific legal protections. Employers can’t retaliate against an employee, such as by disciplining, demoting or firing them, for reporting transgressions to the appropriate agencies.

What are the most common employee rights violations?

Consider the rights your employees are entitled to and zero in on how you may be failing your workforce. Avoiding violations is critical because noncompliance penalties can be severe. For example, a lawsuit could be brought against your company and a substantial judgment levied.

Here are some of the most common workplace rights violations.

1. Unpaid compensable time

If you employ nonexempt workers whose duties include being on call or working a 24-hour shift with interrupted sleeping time, understand that those employees are entitled to regular wages for any amount of time they spend performing those duties. They’re also entitled to compensation for any additional hours they work, such as overtime, which is time-and-a-half pay if they work over 40 hours in one week or work through their lunch break.

2. Unpaid vacation time

The FLSA does not require employers to pay employees for unused vacation time. In other words, if they don’t use it, they lose it. The FLSA does not regulate vacation and other types of time off from work. 

However, some states do require employers to pay for unused vacation if they terminate an employee and other companies may have their own policies regarding unused vacation or sick time.

Some employers have a “use-it-or-lose-it” policy where if an employee does not use all their accumulated vacation days by the end of the year, those vacation days go away. “Use it or lose it” policies are illegal in California, Nevada and Montana while other states, such as North Dakota, Massachusetts and Illinois, require employers to give employees a reasonable opportunity to use their vacation time before they lose it. New York and North Carolina require employers to formally notify staff of “use-it-or-lose-it” policies. 

3. Employee misclassification

Determining whether your staff is exempt or nonexempt can be confusing. Exemption status is not determined by job title or whether the employee receives a salary versus an hourly wage but by whether they qualify for overtime pay. 

An exempt employee is not entitled to overtime pay, according to the labor laws under FLSA and generally is given a salary. To be considered exempt, an employee must earn a minimum of $684 per week or $35,568 per year and perform the job duties of exempt professional categories like administrative, computer-related, professional or executive.

It’s vital to know your employees’ exemption statuses to ensure they’re fairly compensated for their time.

4. Unpaid bonuses or commissions

When you offer a job to a new employee, the employee compensation package may include commission or bonuses based on performance. The FLSA doesn’t regulate commission and employee bonuses as the employer and state laws determine whether an employee is entitled to such extra compensation. 

In some states, an employer may legally require an employee to forfeit a bonus or commission if the employee is no longer employed at the company on the date the bonus or commission is to be paid; other states expressly prohibit this practice.

5. Unpaid or miscalculated overtime pay

The FLSA determines overtime pay regulations based on a 40-hour workweek. It stipulates that for hours worked more than 40 hours in one week, employees must be paid time-and-a-half based on their regular hourly rate. For example, if an employee’s regular hourly wage is $8, their time-and-a-half wage would be $12. They should be paid $12 for every hour over the 40 hours they worked in one week.

False reporting has become an issue with overtime pay, particularly for undocumented workers. For instance, some employers will establish rules stating that overtime work is not allowed or won’t be paid without prior authorization. Then, they won’t allow employees who work overtime to report those hours, resulting in free labor. 

6. Whistleblowing

A whistleblower is someone who reports an illegal activity or an activity that violates company policy. A whistleblower doesn’t have to be an employee at your company ― they can be a client, supplier, contractor, consultant or anyone else who might have witnessed illegal activity.

Many federal and state efforts in the last few decades have aimed to create policies to protect whistleblowers from retaliation, such as blocklisting, wrongful termination, demotions or even threats and harassment in the work environment.

The Whistleblower Protection Act was passed in 2012 to provide legal protection for federal employees. Additionally, most states provide the right to sue employers for compensation or redress for employer retaliation to employees who have reported transgressions.

7. Workplace discrimination

The Civil Rights Act of 1964 expressly prohibits harassment or unequal treatment in the workplace based on race, gender, religion, age or nationality. It also prohibits employment discrimination as part of the hiring process. It has since expanded to further protect employees with disabilities with the ADA, which requires reasonable accommodations for employees. 

States and employers have added their own anti-discrimination laws based on other factors, including sexual orientation and gender identity.

It’s crucial that your employees know the distinction between unfavorable treatment at work and discrimination and what to do if they believe they’ve been discriminated against.

To help avoid a discrimination lawsuit or claim, you should always follow these best practices:

• Document all conversations with employees
• Ensure you have a thorough knowledge of your company’s anti-discrimination policies
• Document your entire hiring process, including strong reasons for nonhires
• Ensure you provide reasonable accommodations for all workers

If your employees feel discriminated against, they can file a complaint with the Equal Employment Opportunity Commission (EEOC). If they’re concerned about protecting their identity, another agency or individual can file on their behalf. As the employer, you are legally prevented from retaliation against the employee.

What federal laws protect employee rights?

Several agencies are responsible for creating laws that protect employees within the workplace. Applicable laws include:

• Family Medical Leave Act
• Title I of the ADA
• Rehabilitation Act 
• FLSA 

The agencies that regulate these laws include the DOL and its subdivisions, including the Office of Disability Employment Policy and the Office of Federal Contract Compliance Programs.

If you feel your rights have been violated and you have protection from these agencies, you can contact them directly or seek advice from an attorney specializing in the field.

What should an employer do if an employee’s rights have been violated?

Typically, if an employee’s rights are violated, an employer can respond in multiple ways depending on the violation the employee experienced.

If you receive an official Notice of a Charge of Discrimination from the EEOC, the first thing you should do is carefully review it. Receiving a notice doesn’t mean you’ve violated any laws, just that a complaint has been filed.

Follow the directions on the notice, such as responding to the charge. The EEOC offers mediation to resolve the charge if you and the complaint-filing employee are willing to participate.

The EEOC may follow up with requests for additional information, such as documents, interviews or on-site inspections. 

An employee may also make their complaint directly to you, in which case you should respond directly, confidentially and empathetically. Ensure you have a system in place for employees to make their complaints and that they know what type of response they should expect, such as in person, an email or an inquiry form. 

Your company’s HR handbook should outline your policy on employee complaints, complete with procedures and expectations. You should also have a system to conduct an impartial investigation should the complaint warrant one.

Jennifer Dublino contributed to this article.