13 Things Your Boss Can’t Legally Do
No one is above the law, including your boss. The National Labor Relations Act and a variety of statutes overseen by the U.S. Equal Employment Opportunity Commission (EEOC) protect employees from hostile work environments, discrimination and unfair labor practices. There are also state and local regulations that employers must follow.
Even though many employers do not intend to violate the law, they may do so accidentally if they don’t understand their obligations. If you’ve ever wondered whether your boss can legally take a certain action, keep reading to learn more about employee rights in the workplace and what to do if you think your employer has run afoul of the rules.
Your Employer May Be Violating Workplace Laws
Not all workplace laws apply to every business and employee. For instance, some small businesses may be exempt from certain requirements, and managers may not have all the same wage protections as hourly workers. What’s more, state laws can vary.
However, generally, here are 13 things your boss can’t legally do:
- Ask prohibited questions on job applications.
- Require employees to sign broad noncompete agreements.
- Forbid you from discussing your salary with co-workers.
- Not pay you overtime or minimum wage.
- Promise a job to an unpaid intern.
- Discriminate against workers.
- Allow you to work off the clock.
- Retaliate against whistleblowers.
- Fire someone after “papering” their personnel file.
- Classify you as an independent contractor but treat you like an employee.
- Discipline you for complaining about work on social media.
- Turn a blind eye to a hostile workplace.
- Ignore exemptions to vaccination mandates.
Ask Prohibited Questions on Job Applications
Some employers may break the law before you even get hired. The EEOC enforces laws that prohibit a dozen different types of discrimination and, in most cases, employers can’t use those factors in hiring decisions or even ask about them during the interview process. That means a job application can’t ask for your age, marital status, religion or plans to become pregnant, among other things.
Require Employees to Sign Broad Noncompete Agreements
Noncompete agreements generally stipulate that employees can’t work for a competitor for a certain period of time after leaving a company.
A few states, such as California, prohibit the use of noncompete agreements. However, even where they are legal, they can’t be so broad as to make it impossible for someone to find a job in their field.
Forbid You From Discussing Your Salary With Co-Workers
Your boss may not want you and your co-workers to compare your salary or benefits, but they can’t prohibit it. Trying to quash these discussions, either in person or online, can be seen as an illegal attempt to prevent workers from organizing or unionizing.
Beyond violating the National Labor Relations Act (NLRA), prohibiting salary discussions can be problematic when it comes to gender equality laws since there’s no way for employees to gauge wage equality with co-workers if they can’t discuss their compensation.
“Plenty of employers lead employees to believe that their compensation details are confidential and can’t be discussed with anyone, and there’s a reason for that – if you leave employees in the dark as to what everyone else is being paid, it’s harder for them to argue for raises, or they might not even know they are being paid less than their colleagues,” says David Siegel, partner at Cupertino, California-based Grellas Shah LLP, a full-service boutique law firm that focuses on startups, technology and venture law, as well as complex business litigation.
Not Pay You Overtime or Minimum Wage
Employee compensation is no simple matter. Still, the rules on overtime are straightforward. The Fair Labor Standards Act requires employers to pay nonexempt employees overtime pay when they exceed 40 hours of work in a single workweek. Some states have more restrictive laws on the books. Alaska, California and Nevada require overtime pay for those working more than eight hours per day.
Promise a Job to an Unpaid Intern
Companies may want to entice interns with the promise of a paying job at the end of the internship. However, doing so could have an employer running afoul of federal and state minimum wage laws. Rather than being a learning experience for a student, the internship could be viewed as an unpaid – and illegal – training period.
Discriminate Against Workers
The EEOC prohibits discrimination against workers on the basis of eight broad categories: race, color, religion, sex, national origin, age, disability and genetic information. That means none of these factors, known as protected classes, should be used when making employment decisions, such as hiring, setting compensation and awarding promotions.
Many states have their own expanded list of protected classes. For example, marital status and political affiliation are among the protected classes in California, while Florida prohibits discrimination against someone based on their AIDS/HIV status.
Allow You to Work Off the Clock
Nonexempt employees who are covered by the Fair Labor Standards Act can’t be asked to do work off the clock. For instance, workers can’t be required to do prep work or clean up outside their paid shifts.
What’s more, employers should be wary of any request to be paid in cash or off the books. Employers can get in hot water for failing to withhold payroll taxes, and they could also be on the hook for other penalties if the employee files a complaint saying they weren’t properly compensated.
Retaliate Against Whistleblowers
Employers can’t fire or take disciplinary action against a worker who complains about illegal activity at their workplace.
“Speaking up against discrimination and harassment is a protected activity, and if any negative action follows, the burden of proof will fall on the employer to show that they were not behaving in a retaliatory manner,” says Kimberly Williams, a vice president at Walker Advertising, a law firm advertising agency. “Everyone should review their employee handbook. In some jurisdictions, the company may be held liable for ignoring their own rules,” she added.
But it’s important to note that whistleblower laws and claims against retaliation only apply if the employee was complaining about something substantial, such as fraud or corruption. Simply having an unpleasant boss isn’t sufficient to trigger legal protections.
Fire Someone After ‘Papering’ Their Personnel File
Papering occurs when an employer suddenly files a number of complaints against an employee immediately before terminating them. And if a worker claims they were unlawfully terminated, a recent influx of complaints could reflect poorly on an employer, more so if they had not been frequently documenting the activities of the employee up to that point.
Classify You as an Independent Contractor But Treat You Like an Employee
Hiring independent contractors instead of employees is a way businesses can keep costs down. It allows them to avoid paying benefits and some employment taxes. However, businesses may classify workers as independent contractors when they are actually employees. Essentially, if a company dictates when and how you work, you’re an employee, not an independent contractor.
Discipline You for Complaining About Work on Social Media
Under the NLRA, employees are given wide latitude to talk about their employers publicly, including on social media. That’s because trying to curtail worker communications can be seen as an illegal attempt to prevent them from unionizing or organizing.
Still, employees shouldn’t feel emboldened to say anything they want online. Threats of violence, harassing behavior and maliciously false statements could be grounds for discipline or dismissal from a job.
Turn a Blind Eye to a Hostile Workplace
An employer has an obligation to ensure its workplace is a safe environment and that worker complaints are handled in an appropriate manner. Some states also require companies to provide sexual harassment training to workers or supervisors.
The EEOC says a hostile work environment is created when a person must endure offensive conduct as a condition of continued employment and the conduct is severe and pervasive enough that a reasonable person would find it intimidating, hostile or abusive. Under this definition, a single inappropriate comment from a co-worker probably doesn’t meet the criteria of a hostile workplace.
A hostile workplace can extend past business hours as well. Employers have an obligation to address behavior such as a person sending harassing texts or messages to a co-worker in the evening. The key is that the employer must be aware of the behavior. If it involves a supervisor, the company can be automatically held responsible for the behavior.
Ignore Exemptions to Vaccination Mandates
Employers have a long history of requiring workers to have certain vaccinations. In 2021, a federal judge dismissed a lawsuit brought by employees of Houston Methodist Hospital who were disputing the hospital’s requirement that they receive the COVID-19 vaccine as a condition of employment.
However, while mandating vaccination is not illegal for most workers, it can violate the law if exemptions are not allowed for medical reasons or deeply held religious beliefs.