Know your rights! When to fight the boss and when to grin and bear it

Labor marchers in early October. Photo via Flickr's peoplesworld.

Work sucks sometimes. Coworkers can be annoying, and bosses micromanage, but there are some conditions in the workplace that are actually intolerable under federal and/or New York State law. Here is a quick run-through of just a few concerns that one of you (employed!) 99 percenters might face. From break time to vacation time to raise time, whether you’re in an office, warehouse, restaurant or at the cash register, Brokelyn will help you know when to stand up for yourself and when you don’t have a leg to stand on.

NOTE: This article is based off of my experience in government community work and should NOT be a substitution for legal advice!

Your boss says you can’t take a break to eat the bag of knock-off Cheetos you call lunch.

FIGHT IT

Your employer MUST provide you a break if you ask for one, but they are not required to pay you for the time you take or for your sorry excuse for nourishment. If your shift lasts longer than six hours, starts before 11am and lasts after 2pm, you are entitled to a break of at least 30 uninterrupted minutes between 11am and 2pm. If you have a shift that starts before 11am and lasts past 7pm, you are allowed a 20-minute bonus break between 5pm and 7pm. For those of us fortunate (or unfortunate) enough to have a shift that begins between 1pm and 6am and lasts more than six hours, there is a 45-minute required break “in the middle of the shift.” So basically, your employer can’t force you to take an unpaid “break” at the end of your day.

In addition to your normal 40 hours, you worked an extra six hours at the store the day before Hurricane Irene bagging emergency soy milk and kale for paranoid yuppies, and your boss isn’t giving you any extra pay.

FIGHT IT

Overtime is classified as work in excess of 40 hours during a workweek, and federal law requires you to be paid 1.5 times your normal hourly rate. There is no special compensation for working more than eight hours in one day, or special pay for weekend or holiday work. There are certain exceptions to this rule, so check your classification before making any demands (If you are a nurse, your boss cannot force you into overtime, for instance).

There are no limits to the amount of total hours you can work in a day, when work begins/ends, or how many days are worked within the week. However, if you work in a factory, mercantile establishment, hotel, restaurant or as an elevator operator, watchman, janitor or superintendent you are entitled to “24 hours of rest” (read: a day off) in each calendar week. 

Your boss puts you on probation after missing work on Wednesday due to your morning of vomiting that had nothing to do with Tuesday’s two-for-one frozen sweet tea margarita special at the bar.

ACCEPT IT

Pretty much no one has the right to paid or unpaid sick days under federal or state law. However, if you are out of work for longer than seven days, you may be entitled to state Disability Benefits. In addition, you may have the right to time off to deal with long-term illness, care for sick relatives or your children under the federal Family and Medical Leave Act. Note that if your employer provides you with sick days, they cannot penalize you for using them.

Minimum wage is a pathetic $7.25 per hour in New York State (and nation-wide), but you’re only earning a Lincoln plus tips.

ACCEPT IT

While most sectors are required to pay you minimum wage, restaurant service jobs (farming jobs are also exceptions, but tending to your window box of basil and one pepper does not make you a farm worker) are classified differently. Food service workers can earn as low as $5 per hour, but the remaining $2.25 MUST be made up in tips. The burden is on your employer to prove that this is the case.

You’ve managed to keep your smile intact the whole night while waiting tables for tips given in change by men who forgot they weren’t in Hooters, and now you’re being forced to share your earnings with coworkers AND management.

FIGHT IT

Technically, your boss is allowed to mandate tip sharing or “pooling” by other food service employees as long as they give written notice. But management cannot take a cut of gratuities, except to charge employees the same amount charged to customers for processing credit card transactions.

Your employer has not offered employees health insurance, forcing you to shell out $200 for a doctor’s visit, only to find out that you are overweight because of all the free frogurt you’ve been eating at work.

ACCEPT IT

Labor unions unite at OWS.

Employers are under no obligation to give you health insurance or cover your healthcare costs. Though if you are injured on the job, or exposed to certain toxic substances (frogurt may be cursed, but does not count as a toxic substance), you may have recourse in the form of Worker’s Compensation.

Your problems at work are more serious than missing out on the corner piece of cake at staff parties and forgetting to wear jeans on Friday. You bring the issues to the attention of your boss, and that Friday at 5pm you find yourself on unemployment indefinitely (actually, until it runs out).

FIGHT IT

You cannot be penalized/retaliated-against/fired for making a complaint to your employer or to the New York State Department of Labor about workplace conditions. Likewise, it is illegal for your employer to fire you for attempting to form a union or organizing coworkers. You may also have certain rights under the Whistleblower Protection Program, depending on what sector you are in and the nature of your complaint.

In anticipation of your scheduled paycheck tomorrow, you bring your bank account down to single digits after the two-for-one Beefarino special at Key Food. Tomorrow comes and there’s no paycheck.

FIGHT IT

Your employer must pay you by the end of whatever pay period is agreed upon when you’re hired.

Instead of cashing in your vacation days to seek authentic sushi and karaoke in Japan, you opted instead to get bodega sushi and karaoke in Williamsburg. By time you leave the job, management seems to have forgotten about compensation for these unused vacation days.

FIGHT IT

If your employer agrees to give you vacation, personal leave, etc when you are hired, then they must pay out the unused days unless you also agree to forfeit those days upon leaving the job. Unfortunately, your employer is under no legal obligation to give you vacation/personal/sick days in the first place (note: the United States is the only industrialized nation that does not guarantee vacation or sick days for employees).

It’s been several years since you started at the law firm/localized novelty gift shop/sewage treatment plant/third-tier chain restaurant, and you feel it’s time for a little more cash. 

ACCEPT IT

Unless it’s in a contract you’ve signed, no employer has an obligation to give you a raise.

What can you do to fight back?
If you suspect that your employer is violating your rights, first speak to a human resources representative or your employer’s equivalent (many employers have mediation services), and see if you can work the issue out internally.
Some larger companies or organizations have formal grievance processes, and it might be worth filing such a grievance if your situation escalates. Monitor the situation very carefully by keeping a notebook detailing abuses with dates and times. You are well within your rights to keep personal notes, so do not let a supervisor intimidate you (for the brave: taking notes in front of your higher-ups is a great way to freak them out a little).Your next course of action is to contact the state or federal government and report the abuse. If you’re at a loss as to which agency to choose or not getting a helpful response from the bureaucrats, call your local elected official’s office(s) and ask them to follow up with the Department of Labor to ensure your case is processed, or even recommend free legal services should you need them. Likewise, if there’s a right you wish you had, make yourself heard!
Follow Rachel: @RachelEveStein.

26 Comment

  • Just know that for the overtime bit, it really only applies to those who receive hourly wages. If you’re salaried, you’re basically screwed—your employer is in no way required to pay overtime for those 60+ hour work weeks.

    • But just because you’re paid a salary doesn’t mean you’re not really an hourly employee. There are many cases of employee misclassification (ie employee vs independent contractor/1099, hourly vs salary) and the government bias is to classify the person as an employee and hourly employee to make sure taxes are withheld appropriately. The US and NYS Departments of Labor have made this a significant priority and will be very very happy to assist you (read: they collect more taxes by helping you out).

      Going to HR is not always a good idea. HR represents the company/employer, and not you the employee. There is no such thing as confidentiality or assur@amber_mc:disqus 

      • I got cut off: and you should be careful what you share with HR, who is NOT your friend despite what HR may lead you to believe. Collect the employee manual and review other written policies to get more info–you can’t win the game if you don’t know the rules–and find out what others do within your employer to see if others were treated differently or the same (read: possible discrimination claim).
        You have no right to a break if you’re truly a salaried employee.
        FMLA applies only if the employer has greater than 50 employees and you worked there for greater than 1 year (and worked >1250 hours in that year).
        NY is employee at will, which means you can fired for any reason, or no reason at all, with or without notice or cause, unless there is an illegal or discriminatory reason.

  • If you need free legal assistance on employment matters, contact the New York County Lawyers’ Association for free help: http://nycla.org/index.cfm?page=Pro_Bono
    Legal Counseling Project – Provides counseling to clients four times a month on an appointment-only basis in the areas of family, employment, consumer bankruptcy and landlord/tenant law.  No representation of any kind is undertaken.  Clients are prepared during the clinics for pro se representation.  Volunteer atorneys may be asked to review documents, answer questions, discuss areas of concern that the client should be aware of when entering into certain agreements or point out various methods whereby the client can either correct a problem or seek appropriate assistance and direction.  Mentors, who are experienced in the four practice areas, are available by telephone on each clinic night to assist volunteers. This is a great deal and is very helpful guidance.

    • Thank you, Employment Attorney! You are 100% right about HR–they are not always your friend. Be smart about who you trust. Also, the NY County Lawyers link is great.

      Does anyone else have any helpful resources/lessons learned/etc?

  • CAN YOUR EMPLOYER MAKE YOU WORK YOUR SHIFT OFF FACILITY GROUNDS?

  • I wanted to take off only for a few hours of my regular 24 hour shift so I could attend my daughters gymnastics meet. I wanted to come in a 5pm and was scheduled to work 9am to 9am. But my employer said if I wanted to take off and use my vacation I had to use at least half the shift in vacation which means I would have to come in at 9pm instead of the 5pm I wanted. Can my employer force me to use more of my vacation than I want to or need to?

  • I was hired by a large retail company 2 1/2 years ago. The grounds for me accepting the position was to have Sundays and Mondays off. The company announced that they will be closing this location by the end of May, and unless transferring a minimum of 3 hours away, all of the store employees will be laid off. Severence packages have already been discussed with all. The store manager approached me and said I would need to start working Sundays, and take an alternate day off. I said that was not the agreement when I was hired. Her response was Im asking now, but could make it mandatory. She also stated that the employees that go to church on Sundays would no longer be allowed because she wants them at the store earlier then they are now. The excuse she has given is because of how busy the store is, as we’re floor sampling everything in the store. There is nothing in my yearly contract or severance package requiring me to change my schedule to an or else situation. The reason for my Sundays off are because my family and fiancee live over an hour away…the only time I get to see them. When reminding her of that, she said everyone is making sacrifices, and that not seeing family and my fiancee for 3 months is completely acceptable…kind of a so what additude. I have made the commitment to stay to help close the location, which keeps me from seeking employment elsewhere until June 1. This bullying tactic she is using, is that allowed?

  • If I was hired with special conditions as what days I can work and hours I can work due to special needs child, and hired full-time, can my manager change that just because she wants her friends to work my shift?

  • if i make salary, and out of work due to being sick with a excuse does my boss have the right not to pay me?

  • if i dont give a written notice but tell my manager that i am moving to another state in 4 months, then three weeks later tell her that i might not leave. does she have the right to tell me sorry i filled your position and come the time stated i have no jobe for you because you told me you were leaving.

  • I got sick on the job. I told one of the supervisor i could not breathe. Instead of them calling 911 both manager and supervisot told me to go home. I had to call 911 while still at the job site.

  • I received a disturbing phone call at work about one of my family member I learn that I had to leave work so I couldnt find any sup to let them know I had to leave to I call my sup and let him I left the and didn’t know if I was able to make it back can my job fire me for that

  • NOTE ,( THIS JOB IS IN A CABINET SHOP)

    I worked for this company 12 years ago, I quit because the ower could not pay us, the checks would bounce, and not give us ower pay we would have to wait months, He would always owe everybody money he would never pay us the right way never on time, never any over time we would work 100 hour weeks( no bull ) he would pay us in checks, cash , he would even tell you let me pay you by paying your personal bill, so he could use it for his taxes.
    Anyway now he call me and tells me he is in a jam and he wants me to come back to work ,
    I said only if you pay me on time ,he said no problem .I work the first week, the second week , the third week he still has not paid me now i tell him i me to get paid you have to pay me or i quit ,so he tell me who do i make the check to. ( I tell ME ) , HE SAID I CAN’T PAY YOU UNDER YOUR NAME AND I CAN’T GIVE YOU CASH IT HAS TO BE A COMPANY NAME OR I CAN’T PAY YOU , SO I GOT MAD I FORT WITH HIM,SO THE ONLY WAY I COULD PAID I HAD TO MAKE YOU A COMPANY NAME SO I COULD GET PAID , HE OWED ME 3000.00 AND AFTER ALL THAT HE PAY ME 500.00 THE WEEK LATER HE GIVE ME 600.00 NOW I SAYING TOMY SELF I AM NEVER GOINGTO GET PAID I DON’T GET ANTHER CHECK FOR LIKE 3 MORE WEEKS AFTER THE ONLY BECAUSE GAVE HIME A BILL AND FORT WITH HIM AGAIN SO , HE GIVE ME 2000.00 AND I TOLD HIM I CAN’T DO THIS ANYMORE HE SAID FINISH THE JOB SO NOW I STOPED WORKING BECAUSE HE OWES ME 5000.00 HE TELLS ME HE CAN’T GIVE ME WHAT HE DON’T HAVE
    WHAT CAN I DO TO GET MY MONEY . THIS MAN IS SO ILLEGAL HE DOES THIS TO EVERYONE ,
    CAN SOMEONE HELP ME TELL ME WHAT I CAN DO

  • Hi can someone please help me out?
    I work part-time and have a contract which entitles me to a minimum of 7.5 hours per week, I usually get between 15-20. However, I have seen the rota for next week and my manager has not given me any shifts at all for the full week. Is this legal? I’m currently paying off student loans (which she knows about) and also taking my driving lessons (which she also knows about). Do I just have to accept that I have been give 0 hours or am I legally entitled to at least 7.5?

  • I went to work one morning not feeling myself. I worked all day, late that afternoon I went to the HR told her I thought I was having a stroke. I could not smile. She implied I looked fine. I went back to work, the next morning I was off on vacation. I went to the hospital still sick, the dr diagnosed me with bells palesy. I had a stressed induced stroke. It was not as bad at that moment but was wording though out the day. I had a meeting that I had to attend at work so I went straight from the hospital to the meeting at work, the next day It was worse I was unable to work. I went to see my regular dr. She wonted me to rest for a week, gave me a dr excuse and sent me home unless it worsened. I called the hr dept, and spoke to her. No names. She wonted to know what was so disabling me that I could not work. Instead she calls me back later and has the two bosses on the phone. They implied that I had too bring my excuse that day to work. So unable to drive. I sent my daughter with the excuse to my place of employment. Why they could not wait until I returned to work I do not know. But since this incedent. The plant upper visor has stated that I was stupid. Can they do this?? Help.

  • hi i was just wondering i work at dominos and i texted my manager easier way as i would have asked him the same if i rang him asking him what days im working this week as i have to travel to work he texted bk saying i can have this week off paid holiday can he do that! and will i def get paid for it as i thought i would need to sign holiday forms i been the citzen advice and im seeing a person who deals with these problems in 2 weeks but can you give me more information thanks

  • I have worked for a home health agency for 6 yrs. The woman who owns the business gets by with a lot of abusive conduct towards those who work for her.
    I have had a perfect track record untill the last 2 months. The client I took on she was about to lose, one because a caregiver didn’t show up, and two the had a crying fit in the clients house. Because I had experience with ALS I asked for the chance to salvage the Client. She offered 4 more $ than my normal $10.50. But I told her and we agreed on $2 extra. Over the months the client has had problems with billing and different things. They would not be with this company if they didn’t want to lose me. Which they don’t.
    I was working 5 days a week 3 hrs per day. It changed to 3 days a week 5 hours a day. Three hours is 21.50 per hour and 4 and above is $20.
    So I did not receive my ck stubbs, but saw amount deposited in my account. I knew it was wrong, but could not get a answer from office till a month later when she said she took the $2 back. She did not discuss this with me or tell me it would happen. There was no contigency that should amount of hours change my pay would change. Then I did not get my ck stubbs again. She told me she had no control over it, she couldn’t hold them back. Well the accounting firm just told me that the office is the ones that post them. So then I found out that my base pay of $10.50 that I had had for over 3 years she decided to cut to $10. saying I had never made $10.50. I have hard copy ck stubbs that show I made that. But she says she wont pay me now what I had been earning in the first place. Also, they space banked some of my money. I did not approve this. I only found out later with 3rd ck stubb, that money never was given to me. Now, we were paid today. We usually get ck stubbs on Thurs. I did not get one again to be able to ck my account.
    She has fired me for complaining about the above problems.
    While still owing me money she refuses to pay me for. I also have a office witness to her tirades, and irrational behavior.
    What can I do to prompt her to pay me. I also know from working in the office for a time that people who filed for unemployment benefits that she would tell Unemployment office that she had offered these employees clients that they would not take. What she would do is give a caregiver a client that was so far that they would be losing money to take it. Or give them a time that they could not make like a over niter so these people were denied because of her games, and laugh about it.
    She is bullying me through txts, as well as other. I have saved all txts.
    Thank you for any help

  • The accountant at my job is always yelling at me for no reason today she yelled at me because I spoke to my cowoker about my paycheck and told me if I have any question about me check I should talk to her and the next time this happens I will Lose my job is this right????

  • my sister is a working mother and currently pregnant with her 3rd child the doctor gave her a note saying she can take a week off, her boss said no can they do that since she has a high risk pregnancy, another occasion my sister called out of work because she was in the hospital and the next day she went to work and told next time she called out she would be fired she only called out 2 since she worked there??

  • I got taken off the schedule for two weeks straight with no warning or explanation. Then when I asked him about it, he gave me a vague answer and couldn’t be direct with me.

  • My manager has never let me count my own register at the end of the day. Some how I always end up being short $10-$15. Can I ask to do it myself? I think she may be saying I am short and I really am not.

  • i NEED anwsers. I punched out for my hour lunch and i had a meal and drank one beer. does that qualify for termanaton of my job. It was off company time and i had well over 45 mins before i had to go back to workk?? please help

  • Hi I’ve got a problem. Company owes me money for 4 months end of each month they’ve promised my money will be paid nw I’ve just after the month ended I stayed away from work receiving a call early morning what’s my plans I sit down explain and that company expects us to be loyal and do our work as required but in the meantym company not being loyal to their staff members what grounds do I have to stand on as nw they want to me to return but still promised to pay just not sure hw soon

  • I start work at 7am and as soon as I get to work my boss forces me to take my 15 minute break. My lunch break is for 30 minutes and im forced to take that at 10:30am. My shifts ends at 3pm is this legal?

  • I work as a maintenance tech on an apartment complex and also live on site. My manager recently told me that if I’m on call for emergencies I have to stay within 5 minutes of the property at any given time. Can she do that? My off time should be my time not works time.