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7 common employment myths

by | Jan 5, 2021 | Employment Law |

I have spent more than 20 years bringing and defending lawsuits based on workplace problems. Every time I think I’ve seen most of what is good and bad about work, I get schooled. The workplace can be both better and worse than you think, and both sides delude themselves.

Here are 7 common myths people believe:

#1. Your doctor’s note will excuse you from work.

If you are sick or injured, and your injury did not happen at work, then your boss usually does not have to excuse your time away from work — even if you have a note from your doctor. That being said, COVID-19 is different. 

However, if you were hurt at work, that is different. If you worked more than 12 months and 1250 hours in a company with more than 50 employees, you have the legal right to time off. With this there are exceptions, such as pregnancy and disability, but they are less commonly challenged.

For the most part, work is not high school. Your boss has a job to get done. If you cannot be there, then he must get someone who can. Your doctor cannot tell your boss to give you time off.

#2. Your boss has to tell you why he is firing you.

False. If you are not a union member or a government worker, and you don not have a contract with your boss, then you are an employee at will. That means your boss can fire you for any reason, or no reason at all, as long as the reason is not illegal.

Perhaps your boss does not like your politics, your hair color, or your tattoos. She can just show you the door. She does not have to tell you why she is firing you. She does not have to give you a letter. She does not have to give you notice.

“This isn’t working out; I’m going to let you go” is all she has to say.  

#3. Your workplace is a hostile environment.

People know what hostile means. The common definitions are “opposed in feeling, action or character,” or “not friendly, warm, or generous; not hospitable.”

At work, an illegal hostile environment requires a boss or coworker to be opposed in action or abusive to you, in a deep and regular way, based, at least in part, on the legally protected classes: your age, race, gender, disability, ethnic origin, or even your sexual preference. 

A mean spirited, foul-mouthed, overall abusive person is a bully, but they are not “hostile” under the law (unless they are like this toward you because you are in one of the protected classes).

#4. You are not entitled to overtime pay because your boss put you on salary.

Your boss says, “I’ll put you on salary and pay you the same amount each week, so I don’t have to pay overtime.” Presto, you are slave labor now. Sleazy (or uninformed) employers love this tactic.

In truth, American wage laws presume you get paid overtime for weekly hours worked over 40. There are, of course, several exceptions, but most jobs require overtime pay. Non overtime-pay (also known as overtime exempt, or just exempt) jobs are usually highly-paid, and they require management level authority. They also must come with a salary that does not vary based on the number of hours worked in a week.

Your boss cannot make you exempt from overtime pay just by paying you the same amount every week. He wishes he could, but he cannot. 

#5. You can take extra time-off instead of being paid overtime.

If you do not work for a government employer, city, state or federal, then your boss cannot trade you time off for your overtime work. Your boss cannot “bank” your hours. While government employers can do that, private employers cannot. 

Even if you agree to this deal, and take the time off, you can still seek payment from your employer at a later date. How? Because neither you nor your boss can agree to break the law. 

#6. “I will give you a 1099 and you will be an independent contractor.”

Your employer might want to tell you that you are not an employee, but instead you are a contractor. “Who? Me?” you say. 

Good question.

Your boss will want to say you are a contractor so they can avoid the employer-paid costs of having an employee. It is a common tactic used by sketchy, greedy, or just plain uninformed employers.  

When she tells you that you are a contractor, but there is no contract, be very skeptical. For if (1) you have to be at work when your boss says, (2) you must do what you are told or get fired, (3) it is the only job you have, and (4) you have no control over what work you do, then you are probably an employee and your boss is cheating you.

#7. Unemployment claims against my company will cost me money. 

If you are an employer, and you pay your unemployment compensation insurance premiums to the state, then firing or laying off employees will not cost more money out of your pocket for that claim.

The money you pay the state every pay period is an insurance premium. You are buying layoff insurance for your employees and the state is the insurer. If you let a worker go, then the state insures that the employee gets part of the wages they lost because they are out of work. The state assumes a certain amount of layoffs in your industry. Stay in that range and you will not see any changes in the unemployment premium percentage you are already paying.

It usually is not worth the mental and financial costs to object to your fired employee’s unemployment claim. True, they may have been bad, or worthless, or criminal, and you may want to fight the claim on principle.

If you just let the bad employee go, literally and figuratively, and then let their claim go forward, then most often they will just take their benefits and relax for a while. 

On the other hand, if you object to a claim, then the fired employee might lawyer up.

By: James Langendorf, Esq., Attorney at Hurley Law

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