Top 5 Employment Law Myths

By | July 12, 2010

Top 5 Employment Law Myths

There are a few misconceptions about employee rights that employment attorneys routinely encounter in their conversations with potential clients and friends.  This article aims to debunk five common employment law myths in order to empower you to make wise choices about your employment.

Myth 1:  My employer can only fire me for a good reason.

Fact:  In most cases, your employer can fire you for any reason except specific illegal reasons.

Most employees are employed “at-will,” meaning they can be terminated at any time, for any reason (even for a silly or unfair reason), or for no reason at all, so long as it is not for an illegal reason.  Exceptions to this are many government employees and employees working pursuant to an employment contract or collective bargaining agreement that specifies that termination must be “for cause.”

If you don’t know whether or not you are an at-will employee, then you probably are.  The law presumes private sector employees are at-will in the absence of evidence to the contrary.  Some employers make it clear that their employees are at-will in employee handbooks, offer letters, written policies, or other employment documents.  However, if the employer is silent as to the reasons your employment can end, chances are, you are employed at-will.

However, at-will employees are not without legal recourse where they are terminated for reasons that are unlawful under state or federal law.  Unlawful termination reasons vary from state to state.  However, most employers may not terminate employees, including at-will employees, based on discriminatory reasons such as their race, sex, age, religion, nationality, or disability.  Some states also make it illegal for employers to terminate employees based on their sexual orientation or marital status.  “Whisteblower” laws prohibit most employers from terminating employees because they reported the employer’s unlawful conduct to a government agency or refused to violate the law on the employer’s behalf.  Other common illegal reasons for termination include retaliation for serving jury duty, filing a workers’ compensation claim, and complaining about workplace safety.  Because the laws vary widely from state to state, it is important that you consult an attorney if you believe you may have been terminated for an illegal reason.

Myth 2:  I can sue my employer because my boss is mean to me and harasses me for no reason.

Fact:  It is not against the law to be a jerk.

While the law does prohibit some workplace harassment, not all harassment is illegal.  For the most part, whether harassment is illegal depends on why the person is harassing you.  It is illegal for most employers to harass employees based on their sex, gender, race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, age, and in some states sexual orientation or marital status.  Most employers are also prohibited from harassing employees because they closely associate with people of a different race.

Most workplace harassment, therefore, is not illegal.  If you are being harassed by your boss because she doesn’t like how you dress, is threatened by you, is in a bad mood, or doesn’t like your personality, the harassment is not illegal.  In general, it is not illegal to be rude, obnoxious, or just plain mean in the workplace if the behavior is not motivated by a discriminatory reason.

Employees suffering severe abuse in the workplace may have legal recourse under laws outside the scope of traditional employment law.  For example, under personal injury law (called “tort” law), individuals can sue co-workers, supervisors, and in some cases their employers for intentional infliction of emotional distress where one engages in extreme and outrageous conduct that intentionally or recklessly causes the employee severe emotional distress.  Employees suffering severe workplace abuse may also be entitled to workers’ compensation.

Myth 3:  I want to quit my job today, but the law requires me to give my employer two weeks’ notice.

Fact:  You can quit your job at any time for any reason.

As you now know, at-will employment allows employers to fire employees at any time, for any reason, or for no reason at all.  The flip side of this is as an at-will employee you can quit your job at any time, for any reason, or for no reason at all.  You are not required to give your employer two weeks notice, or any notice at all.  Giving two weeks’ notice is merely traditional and courteous, and, practically speaking, maybe essential if you want to avoid burning bridges with your prior employer.

Of course, this also means your employer can fire you without giving you notice.  Similarly, even if you are gracious enough to give two weeks’ notice, there is nothing preventing your employer from firing you on the spot and depriving you of the opportunity to work for two more weeks.  Thus, in deciding whether to give notice, you may want to consider how your employer will react to learning you are leaving.

Myth 4:  I’ve been a good employee for several years but was just laid off.  I am entitled to a severance package.

Fact:  Employers not obligated to pay severance to fired or laid-off employees.

Employers are not obligated to pay severance to fired or laid-off employees regardless of how long they worked for the company, how strong a performer they were, or the reason for the lay-off.  The exception to this is if your employer has a written severance policy in, for example, the employee handbook or employment contract.

If your employer does offer you a severance package, review it very carefully before signing it.  If possible, have a lawyer review the agreement.  Most severance agreements require you to give up certain legal rights in exchange for the severance pay.  For example, most severance agreements require you to waive your right to sue your employer.  Thus, if you believe you are being terminated or laid-off for an illegal reason (i.e. your race, sex, age, religion, nationality, disability, sexual orientation, marital status, or “whisteblowing”) consult with an employment attorney before signing any severance agreement.

Even if your employer does not offer severance pay, you can nevertheless try to negotiate for one.  Employees with a potential lawsuit against the employer have the most bargaining power, since the employer will have incentive to pay a severance in exchange for a waiver of the right to sue.  However, you may be able to recover more money through a lawsuit than a severance agreement, so be sure to consult with an attorney before waiving your right to sue your employer in exchange for a severance package.

Myth 5:  I’m pregnant and am entitled to a paid maternity leave.

Fact:  If you are entitled to maternity leave at all, it is likely an unpaid leave.

Whether you are entitled to maternity leave depends on several factors including the state you live in, the number of employees in your company, how long you’ve worked for the company, whether you are disabled by pregnancy, and how your employer treats other temporarily disabled employees.

State and federal pregnancy leave laws require employers to provide eligible employees with unpaid leave for pregnancy-related medical conditions and family bonding.  Pregnant employees and new parents are entitled to paid leave if the employer voluntarily offers paid leave, it is guaranteed by a collective bargaining agreement, or the employer provides paid leave to employees with other temporary disabilities.  Some states also provide temporary partial income to employees disabled by pregnancy or childbirth through state disability insurance funds.

Under federal law, namely Title VII of the Civil Rights Act of 1964, employers with 15 or more employees must treat workers disabled by pregnancy or childbirth the same as they treat other temporarily sick or disabled employees.  Thus, if an employer provides paid leave, such as sick leave, to ill or temporarily disabled employees, it must provide the same to women temporarily disabled by pregnancy or childbirth.  Similarly, if the employer allows sick or temporarily disabled employees time-off from work to seek medical treatment, it must do the same for pregnant employees.  On the other hand, if the employer does not allow ill or temporarily disabled employees to take leave, they are not paid during their absences, or they are in danger of termination for their absences, so too are women disabled by pregnancy or childbirth.

The federal Family and Medical Leave Act (FMLA) provides additional protection to pregnant employees and new parents who have been employed for at least one year at a company with 50 or more employees.  The FMLA entitles male and female employees to 12 weeks of unpaid leave to recover from a pregnancy-related serious medical condition, or to care for a newborn, newly adopted child, or seriously ill child.  Unlike Title VII, the FMLA allows new parents time-off to bond with their child, even if neither the parents nor the child are ill or disabled.  The FMLA also entitles employees to maintain their health benefits during their leave and to return to their job or an equivalent position after the 12-week leave ends.

Some states afford additional rights to employees who are pregnant, disabled by pregnancy, and new parents.  In California, for example, employers with five or more employees must provide unpaid pregnancy leave to employees disabled by pregnancy, childbirth, and related medical conditions, regardless of how long the employee has worked for the company.  Because pregnancy leave laws vary widely from state to state and among employers, if you are pregnant or planning to have child, it is a good idea to consult an attorney regarding your rights.

Employment practitioners are often met with shock, disbelief, and disappointment when they share these facts.  Regardless of how you feel about these laws, however, this knowledge can protect you as an employee and help you identify when your employer has violated your legal rights.  If you believe you may have an employment lawsuit, you should contact an employment attorney in the state you work in, in order to obtain more specific information about your rights.

Raven Sarnoff is a partner at Sarnoff + Sarnoff, a law firm dedicated to representing California employees who have experienced workplace discrimination, harassment, retaliation, or wrongful termination.

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