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

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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.

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