Top Ten Employment Law Myths

Over the last decade or so, I’ve heard many of my clients and friends tell stories about how they “know their employment rights” – and, invariably that “knowledge” comes back to bite them in the proverbial posterior. The problem is, most of them have learned what they know from Law & Order, Boston Legal and (I shudder to think of this one) Ally McBeal.

In contemplation of our favorite courtroom dramas, I offer the following summary of the top ten Employment Law Myths.

1. Wrongful termination

If you live in Montana an employer can only fire you for just cause. Otherwise, your employer can fire you for any reason or no reason at all. On the whole, employers don’t have to have a good reason to terminate employment, and they certainly aren’t required to give you a reason.

2. Retaliation

Another common misconception is that an employer can’t “retaliate” against an employee. There is no law prohibiting an employer from retaliating against an employee for reporting or objecting to policy violations, ethical violations, bullying, or general crappy behavior. There are certain protections that apply if an employee does something that puts him or her in a legally protected category. Examples are, objecting to discrimination, making a worker’s comp claim, or taking Family and Medical Leave.

3. Breaks

Believe it or not, there is no federal law that requires employers to offer any work breaks for anything, even meals. Many state laws do require work breaks, but it’s not a majority, and no law requires bathroom breaks – but that gets into the realm of health issues and OSHA likely applies. If the employee is a nursing mother, she’s entitled to an unpaid break to express breast milk, assuming the employer meets certain size standards.

4. Hostile work environment and harassment

Another common misconception is “hostile work environment”. This, on its face, is not illegal. Harassment is not illegal. Bullying is not illegal. That said, however, hostile work environments or harassment based on race, age, sex, religion, national origin, disability, color, taking Family and Medical Leave, whistleblowing, or some other legally-protected status is illegal. Employers are free to play host to any type of terrible work environment they care to – so long as any discrimination is not based on a protected class.

5. Free speech and online speech (the Facebook myth)

Only government employees have free speech protections, and even those are limited. Employees may be fired for their speech either in the workplace or outside the workplace if they work for a private employer. In certain limited situations, speech is protected: (i) for speaking on behalf of coworkers in order to improve work conditions, or (ii) for objecting to something illegal.

6. Privacy (Email, Phone, Paper & Internet)

I’ve seen this one more times than I care to remember. There is no law giving employees any privacy protection in their work emails, documents or internet usage. If an employer is going to listen into or record phone calls, there are some legal restrictions (which are too complex to cover here). Your take-away here is that, as an employee, you should never assume anything you do at work, about work or on an employer’s computer, phone or network is in any way private.

7. Discrimination

This one is, hands down, the most common misunderstood aspect of employment law. Discriminating against you for being you is never illegal. Favoritism, nepotism, being a complete a$$hole are not illegal. Protection from discrimination based on a protected class, that is to say discrimination that is based on age, race, sex, religion, national origin, disability, color and/or genetic information, is illegal.

8. Right to your HR file

There is no federal law requiring private employers to allow employees to inspect or make a copy of their own personnel files. Some states do require employers to allow employees to look at their files, and fewer still allow them to copy items in their files. In most instances, the only way for an individual out what’s in their HR file is to file a suit and demand it via Discovery – or to subpoena it in unemployment or other proceedings.

9. Right to work

Right to work does not mean an employer can’t require the signature of a non-compete agreement or restrict an employee’s ability to work for competitors after they leave. There are state-based exceptions and guidelines (which, again are too complex to cover here). What right to work does mean, however, is that employers can’t make employees join a union in order to work there. If your company tells you that signing a noncompete agreement is meaningless or that it won’t be enforced, they are lying to you.

10. Individual liability

I’ve heard many a bitter ex-employee talk about this one. As much as it may give you joy to sue your boss personally, you probably can’t. Most Federal and State laws simply don’t allow it. The one exception is wage and hour violations. Some state discrimination laws do hold supervisors liable for violations. But what’s the point? Unless they’re rich, they’re probably what we call “judgment proof” and you likely wouldn’t be able to collect anyhow.