Employment rights and wrongs: How can you defend yourself?

Employment rights and wrongs: How can you defend yourself?

The world's best boss: Steve Carell as Michael Scott / NBC Photo: Mitchell Haaseth
The world's best boss: Steve Carell as Michael Scott / NBC Photo: Mitchell Haaseth

WASHINGTON, July 6, 2014 — Do you have the job from hell? What are your rights?

Unless you work for yourself, it is always possible your boss might be a real jerk, or worse. Your co-workers may also be the source of much heartache. When employment problems present, a lawsuit is one possible solution. There are others.

Consider a young gay attorney, recently graduated from law school, in his first job at a big law firm. His immediate boss routinely criticizes his work in front of other attorneys and staff, and seems to delight in bullying him. The boss is careful not to make any anti-gay remarks or insinuations. On one occasion, the boss “pranks” the attorney in front of several others telling him a mistake cost the firm a major client. Two days later the boss tells him he was kidding, but doesn’t apologize and doesn’t make known to the others he was kidding.

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On the morning following another public “scolding” the boss asks, “Did you go home and cry last night?” The young attorney is concerned he may lose his job, as what his boss says and does on a routine basis is unpredictable.

Most states are “At-Will” states. This means that workers can be fired for any reason — for good cause, bad cause or no cause at all.

The logic behind the At-Will doctrine is that employers and employees should be viewed as being on equal footing. If an employee can quit at any time, an employee can then be fired at any time.

Some states have exceptions to the At-Will rule, providing more worker protections:

(1)  Public Policy – Employees cannot be fired in the face of an explicit, well established public policy, such as being fired for filing a worker’s compensation claim or for refusing to break the law at the request of the employer;

(2)  Implied Contract – Even with signed contracts containing At-Will provisions, employee handbooks that provide that the employee can only be terminated for “just cause” can save the job;

(3)  Covenant of Good Faith — This requires “just cause” to fire an employee despite what contracts or handbooks might say.

Generally, employees subject to At-Will laws have little recourse unless their firing is retaliatory or discriminatory.

Our young attorney is appropriately very conflicted. Yes, he can quit, but then he has no income and he certainly will not get any recommendations. To make matters worse, he’ll have to explain to the next employer what happened with his first job. Or, he can endure the bullying and be miserable, and he will then likely find an increase in the bullying. The answer again might be to confront the boss directly with comments such as “tell me my mistakes, but do so respectfully.”

Our young attorney has reason to be concerned because his boss is apparently unstable. Advice: Work hard, act professionally and discuss concerns with the boss directly. If these fail, it might be time to look for another job. Also, it is usually better to find the new job before quitting.

All workers have rights — the laws that prohibit discrimination, harassment and retaliation.

Discrimination: It is illegal to refuse to hire, or to fire, or to treat an employee differently than others in either compensation or work conditions based on “protected” and some other classifications: race, national origin, gender, disability, age, sexual preference, religion.

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While our young attorney may well have a boss who does not like gays, it might be difficult for him to prove that. Approaching the boss directly and professionally then documenting the conversation to establish a record and proof, probably serves best here. A follow-up “confidential to boss” memo can also produce desired results.

Harassment: To disturb persistently, to torment, to pester, to persecute; including verbal and physical harassment, which includes unwanted sexual harassment, advances, or requests, and particularly where submission to such conduct, whether explicit or implicit, becomes the basis for continuing employment.

Hostile Work Environment: An employee can look at the general atmosphere of the workplace, and if verbal or physical conduct unreasonably interferes with work performance, or creates an intimidating, hostile or offensive environment, the employee is protected. The courts have ruled that the offensive conduct must be severe and pervasive, judged by a “reasonable person” standard.

Use of a single remark (such as the “N” word) has been ruled to be insufficient to be a violation of federal law, but one unwelcome, intentional touching of an intimate body part is sufficiently offensive to constitute a violation.

Retaliation: Easily understood: An employee cannot be legally fired, subjected to harassment or a hostile work environment, for complaining about his employer who is violating the law or requiring the employee to do so. There are numerous other examples in this category.

What does our young attorney do if his co-workers act in a manner in violation of any of his rights? Co-worker strife is often more problematic than issues with employers. Clearly, the first response is to confront the co-worker(s), then go to the employer. When a violation of rights occurs and the employer fails to act, the employer can be sued. Sexual discrimination and sexual harassment claims stemming from co-worker actions that an employer failed to check have yielded huge verdicts across the country, as have hostile workplace environment claims.

Federal and some state laws provide protections in other areas of employment. Federal laws include:

Title VII of the 1964 Civil Rights Act. These anti-discrimination and anti-harassment protections apply to all employers with 15 or more employees.

The Americans With Disabilities Act protects workers with a “qualified” disability from discrimination. A disability is a physical or mental impairment that substantially limits at least one major life activity. The question of who is disabled is often a contentious core litigation question.

The Fair Labor Standards Act was enacted to address wage and overtime pay issues. This complicated law is best addressed with an attorney.

The Family and Medical Leave Act provides protections to workers who have valid medical or family reasons to be away from work. The employer is generally not responsible for paying the employee.

The Age Discrimination in Employment Act covers employers with 20 or more employees from discriminating against workers age 40 or older.

You are not guaranteed a job. Note that “The Right to Work” principle means that you to have the right to work for a living without being compelled to belong to a union.

Once you have a job, you have some rights. Filing a lawsuit should always be the last recourse.


Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

His new book “Who Will Pay My Auto Accident Bills?, The Most Comprehensive Nationwide Auto Accident Resolution Book, Ever” can be reviewed on http://www.completeaccidentbook.com and can be ordered there, or obtained directly on Amazon: Click here to order

Mr. Samakow’s “Don’t Text and Drive” campaign, El Textarudo, has become nationally recognized. Please visit the website http://www.textarudo.com and “like” the concept on the Facebook page http://www.facebook.com/textarudo.

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