Monday, February 21, 2011

Top 10 Employment Laws That Don't Exist...But Maybe Should?

Donna Ballman over at her blog, "Screw You Guys, I'm Going Home," has a great break down of common claims prospective clients and lay persons think are against the law--and common sense may dictate ought to be--but are not. The top ten list (I make note of how it is in Wisconsin):

• Wrongful termination

If you live in Arizona or Montana, your employer can only fire you for just cause. Otherwise, they can fire you for any reason or no reason at all. They don’t have to have a good reason. They don’t even have to give a reason. Wisconsin has a "narrow exception" for wrongful terminations that requires a clearly defined policy to be identified. Most calls and emails I receive are from people who believe their termination is "wrongful." Very rarely does one have what I consider to be a wrongful termination, but some are actionable under other statutes, so it never hurts to run your case by an employment attorney!

• Right to your file

No federal law requires private employers to allow employees to inspect or copy their own personnel files. Some states require employers to allow you to look at your file. Fewer allow you to copy items in your file. Many times, the only way you’ll find out what’s in your file is if you sue and you get it with a Request for Production, or if you subpoena it in unemployment or other proceedings. Wisconsin actually has a statute that requires employers, upon written request, to allow employees to review their file twice per year.

• Breaks

No federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it’s not a majority. No law requires bathroom breaks, but it's probably a health issue, so OSHA might protect you if your employer denies bathroom breaks.

• Hostile environment/harassment

Hostile work environment is not illegal. Harassment is not illegal. Bullying is not illegal. Hostile work environment or harassment due to race, age, sex, religion, national origin, disability, color, taking Family and Medical Leave, whistleblowing, or some other legally-protected status is illegal. That is, you need to base your "hostile work environment" or "harassment" upon your belonging to what is called a "protected class."

• Free speech

Only government employees have free speech protections, and those are very limited. You can be fired for your speech in the workplace or outside the workplace if you work for a private employer. You can't be fired for speaking on behalf of coworkers in order to improve work conditions or for objecting to something illegal, but be very careful to make sure you're protected before you speak out.

• Privacy

There is no law giving you privacy in your work emails or internet usage. If your employer is going to listen into or record phone calls, there are legal restrictions. You also have privacy rights in your medical information. There is no federal law protecting your social security number, but California and New York do offer limited protection against employers displaying your number.

• Right to work

Right to work doesn’t mean your employer can’t make you sign a non-compete agreement or restrict your ability to work for competitors after you leave. What it means is they can’t make you join a union in order to work there. Some states, but not all, are right to work states. If your company tells you that signing a noncompete agreement is meaningless or that it won’t be enforced, they are lying to you. Wisconsin is not a right to work state.

• Retaliation

There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or jerkish behavior. Only if you do something that puts you in a legally protected category are you protected from retaliation. Examples would be objecting to discrimination, making a worker’s comp claim, or taking Family and Medical Leave.

• Discrimination

Discriminating against you for being you is never illegal. Favoritism, nepotism, being a jerk, are not illegal. Discrimination based on age, race, sex, religion, national origin, disability, color and genetic information are illegal.

• Individual liability

As much as it may give you joy to sue your boss personally, you probably can’t. Discrimination laws, Family and Medical Leave Act, and most other laws simply don’t allow it. The one exception is wage and hour violations. But what’s the point? Unless they’re rich, you probably won’t be able to collect anyhow.


Often times it is not pleasant to be the bearer of bad news to someone who just lost their job but as a plaintiff attorney, it does no justice to blow smoke and foster false hopes. As I often tell people, what is unfair is not always illegal.

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