Understanding Your Rights as an Employee

• Author: Randy Freking
• Profession: Labor employment lawyer
• Pages: 29-54

29

CHAPTER

5

Understanding Your Rights

as an Employee

There are many misconceptions in the workplace that flow from an underlying belief that, in addition to

rights protecting you from unlawful discrimination, you have a right to fair treatment and respect on the

job. This Chapter addresses subjects that often arise during tenure of employment regarding employee

rights.

Most of the answers to questions about employee rights are based on two principles: (i) your duty of

loyalty to your employer and your freedom to leave and (ii) your company’s right to run its business as it

sees fit unless there is a law that restricts it.

What Laws Protect Me?

As noted earlier, a plethora of federal and state laws exist today that provide protection against discrimi-

nation, unsafe working conditions, and retaliation. Other laws govern your rights to minimum pay and

overtime, your rights in the event of an illness or injury, and your right to “blow the whistle.” These laws

are summarized in Chapters 7–8.

Do Independent Contractors Have the Same Rights as Employees?

With very limited exceptions, independent contractors are not covered by most employment discrimination

or retaliation laws. The reason is simple: Independent contractors are not employees and these laws generally

30 The ABA Consumer Guide to Employee Rights

protect employees. There are some lim-

ited exceptions, the primary ones be-

ing state or federal whistleblower laws

that protect persons (not just employ-

ees) who report fraud, illegal conduct,

or other improper activities.

However, even if you are called an

independent contractor, it is possible that

you are actually an employee. Some employ-

ers attempt to limit benefits that they pay for

employees by designating certain individuals as

independent contractors when in fact the con-

tractors are treated like employees. In general, you are an employee if the com-

pany has the right to control the manner and means of your work performance.

Do I Have an Employment Contract?

It is often thought that only professional athletes, top executives, and certain

white-collar professionals have a “contract of employment.” While it is true that

many athletes and executives have written employment contracts, often in con-

junction with inflated salaries to go with them, it is also true that every employee

has an employment contract of one form or another.

A contract of employment can be oral or written, and it is simply an agree-

ment between an employer and employee as to certain conditions of employment.

Every employee has at least an oral contract as to compensation for the work that

he or she will perform for an employer. If an employer agrees to hire a person to

perform work for a company, a contract is formed as to the person’s compensa-

tion, whether it is compensation by the hour or on a salaried basis. However, an

employer is free to change this contract at any time unless there is a guarantee of

a certain length of employment.

Simply put, every employee has some

kind of agreement with their employer.

Although formal, written agreements

generally cover many more aspects of

the employment relationships than do

informal ones, it is simply incorrect to

state, “I do not have an employment

contract with my employer.”

Do I Have More Rights if I Am

Covered by a Union Contract?

Yes. Union contracts generally provide the great-

est job security of all—the right to be protected

from discipline or discharge unless the company

has “just cause.” Just cause is much broader than

the protection afforded by federal and state laws

You should have a basic under-

standing of your rights so you

avoid making mistakes that

could haunt you later. Too often,

employees come to lawyers after

their termination only to discover

that they did something based on

a misunderstanding of their rights

that turns out later to hurt their case.

CAUTION

TIP

If a person who is accepting

employment is in a position to

negotiate, it is often advisable

to expand the agreement to in-

clude such things as job security,

severance pay in the event of ter-

mination without cause, and future

compensation arrangements. While most

employees are not in a position to negotiate

limitations on an employer’s right to control

those aspects of employment in the future,

individuals should take advantage of what-

ever opportunities they have to negotiate

such terms in advance of employment.