Employment Law Myths & Truths

THE MYTH: I work in an at-will state, so employment laws don’t apply.

THE TRUTH: An employee’s at-will status is inconsequential; it does not void any federal or state employment laws. Employees who work in at-will states have the protection of the law.

THE MYTH: Employees have a right to free speech in the workplace.

THE TRUTH: The first amendment does not protect speech in a private employment setting. Some employee speech is protected, but not by the Constitution. For example, the National Labor Relations Act (NLRA) protects employees’ right to discuss the terms and conditions of their employment.

THE MYTH: Requests for reasonable accommodation must be in writing and use the words “reasonable accommodation.”

THE TRUTH: There is no requirement that an employee uses any “magic words” like the “Americans with Disabilities Act” or “reasonable accommodation.” An employee must only make clear that “the employee wants assistance for his or her disability” when requesting an accommodation. The request for accommodation may be made verbally but employment attorneys highly recommend that the request is in writing.

THE MYTH: Like baseball, my employer must give me three strikes before I’m out (fired).

THE TRUTH: An employer doesn’t have to give any strikes or warnings at all before terminating an employee. However, employee disciplinary policies must be applied on a non-discriminatory basis.

THE MYTH: If my employer fires me, I must be given a reason.

THE TRUTH: An employee can be fired for any reason or no reason, but not an illegal reason. An employer is not obligated to inform the employee why he or she was terminated.

THE MYTH: If I work more than 8 hours in a day, I am entitled to overtime pay.

THE TRUTH: An employee is entitled to overtime for each hour above 40 worked in a week, provided that the employee is a non-exempt employee.

THE MYTH: All harassment and discrimination in the workplace are illegal.

THE TRUTH: Discrimination and harassment that is not based on a protected trait (e.g., race, religion, age, sex, disability, pregnancy) are not illegal. The traits which are protected vary by state law and federal law. To violate the law, harassment and/or discrimination must be based on a protected trait.

THE MYTH: Workplace bullying is illegal.

THE TRUTH: Workplace bullying is actionable under federal law or state law only when the basis for the bullying is tied to a person’s protected traits, such as race, age, disability, or sex. (Note that state law may be different. Bullying that is NOT based on a protected trait is not illegal in Pennsylvania and New Jersey.)

THE MYTH: Employees are entitled to 15 minute paid breaks during their shift.

THE TRUTH: The federal wage and hour law known as the Fair Labor Standards Act (FLSA), does not require employers to provide a meal or rest breaks. for their employees. However, some states require employers to provide breaks; some states, while requiring breaks, do not require such breaks to be paid.

For more information on employment law, or to schedule a consultation, contact us today!

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