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Tough Employment Times: Know Your Rights

Posted by attorney Mark Britton

In these tough economic times, many people are losing and worried about losing their jobs. Most employers are very responsible and will retain every performing employee possible — but that is not always the case. There are myriad stories (and lawsuits) where companies laid-off or fired solid employees due to their ethnic origin, sexual orientation, whistle blowing, etc. Consequently, it is important for you to understand some of the basic rights and strategies for staying employed.

Understand Your Employment Bill of Rights This is not a formal document like the Bill of Rights under the Constitution, but it is no less relevant in the workplace. It is a collection of federal, state, and local regulations aimed at ensuring you are treated fairly by your employer. This list is long and varies from state to state, but the most common rights are as follows:

  • You have a right to be free from discrimination. This typically includes discrimination based on race, color, religion, sex, national origin, qualified disabilities, old age, etc.
  • You have a right to a safe workplace. This means that your employer cannot subject you to dangerous conditions, safety hazards, etc.
  • In most states, you have an express right of privacy at your work. This usually applies to your possessions (including purses and backpacks), private mail and telephone calls, and storage lockers that only you access. However, be careful with your email and Internet usage. You have very limited rights in keeping these activities private if you are using the company's computers.
  • You have a right not to be terminated for "whistleblowing." Whistleblowing is when you report to regulators prohibited or illegal activities that your employer is engaging or has engaged in.
  • You have a right to take leave for qualified medical purposes.
  • You have a right to fair wages.

Depending on the state, your Employment Bill of Rights can come in all different shapes and sizes. State and local law, as well as union agreements (if you are part of a union), can also give you additional rights. Most state employment websites will enumerate your general rights, and your union representative or a competed employment lawyer can also give you a list of rights specific to your state and type of employment. The Employee Scorecard Laying-off employees is one of the most difficult things an employer will do. The typical employer has a deep connection with his or her employees, and letting any one of them go for financial reasons (which is the essence of a layoff) is a personal tragedy. As a consequence, most responsible employers are going to layoff underperformers first. They will then move up the performance ladder, with the pain increasing as they go. Not surprisingly, the best thing you can do in a layoff is perform well. And while it sounds pretty simple, what does it mean? It is hard to define unless you communicate well with your employer up front regarding the goals and objectives for your position. Every good employer will have a plan for you and be able to articulate that plan both orally and in writing. Having that conversation up front will prevent the goals from shifting over time (as they can often do). Being able to say "I did everything we discussed six months ago" may just save your job in a layoff environment. But what if an employer decides to fire you for inappropriate reasons? What if your boss decides to "lay you off" simply because you are a minority? Without the aforementioned scorecard, this can be very hard to prove. Without documentation to the contrary, the employer can say, "I was simply unhappy with his/her work."

Get your scorecard in place up front. Communicate well with your employer up front. And make sure you are tracking and communicating your progress against the scorecard. This will all help you in the face of layoffs or termination.

Fighting Back Fighting back in the face of unjust employment practices is never easy. Your former employer will often have an army of lawyers and you don't even have a job. Still, as evidenced by the many successful lawsuits in this area, all is not lost. The key is hiring a competent employment lawyer who has a successful track record in helping employees that have been treated unfairly.

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