10 Misconceptions of Employment Law
by Joseph M. Lovretovich, Esq. November 15, 2013
1. I AM AN AT WILL EMPLOYEE SO I HAVE NO RIGHTS
While it is true that in most states, an employee is employed at-will and can be terminated at the discretion of the employer. However, the employer cannot terminate an employee in violation of a public policy such as: race, disability, ethnic, national origin, gender, sexual orientation discrimination. Also your employer cannot terminate you for refusing to violate the law or for complaining about practices that violate any law or fundamental public policy. So it is imperative when you are terminated that you seek counsel to see if possibly your employer has wrongfully terminated you.
2. MY EMPLOYER CANNOT GIVE ME A BAD REFERENCE
There is no law prohibiting your employer from giving you a bad reference. It is true that most big corporations have policies against giving any reference, that does not mean that your boss can’t do it. However, that does not mean your boss can lie about your performance. If that happens, you may be a victim of defamation, more commonly understood as slander. If that happens you may have a claim and you should seek a lawyer immediately.
3. AN EMPLOYEE IS ENTITLED TO SEVERANCE PAY WHEN LAID OFF
There is no law that requires your employer to provide you with severance pay when you are laid off. Many large companies do have “Severance Policies” in their employee handbook. If it does have such a clause you are entitled to it and should seek counsel. BUT BE VERY CAREFUL WHEN YOU ACCEPT SEVERANCE. IF YOU FEEL YOU WERE WRONGFULLY TERMINATED, ACCEPTING SEVERANCE MAY BAR ANY OTHER CLAIMS YOU MAY HAVE.
4. IF I AM STILL UNABLE TO WORK AFTER FMLA EXPIRES, I CAN BE FIRED
If you need additional leave to recover from a disability or other medical condition, and your FMLA leave expires, you are still entitled to further leave as a reasonable accommodation to recover from your condition. Absent your employer’s ability to show that holding a position open for you is an undue hardship, you are still entitled to additional leave. You should see a lawyer if your leave has expired and your employer has fired you or has threatened to fire you.
5. MY BOSS CANNOT FIRE ME BECAUSE HE DOESN’T LIKE ME
Many people think that the boss cannot fire them if he doesn’t like them. That is not the law. Your employer can terminate you if he doesn’t like you unless the basis for his dislike is based upon a violation of public policy.
6. I CANNOT BE LAID OFF WHILE ON DISABILITY OR FMLA
If your company has a layoff and reduction in force, you are not immune from it just because you are out on leave. If you would have been laid off if you were at work, your leave will not protect you. However, many times, employers take advantage of a layoff to get rid of disabled employees. You should definitely seek a lawyer to determine whether you have rights in such a layoff.
7. IF I SIGN AN AGREEMENT THAT I AM AN INDEPENDENT CONTRACTOR I CANNOT CLAIM I AM AN EMPLOYEE
There are many factors that must be looked at to see if your employer is properly characterizing you as an independent contractor. An agreement stating such is only one factor and absent other factors are meaningless.
8. I CANNOT BE FIRED FOR MISCONDUCT IF OTHER EMPLOYEES ENGAGED IN THE SAME MISCONDUCT ARE NOT ALSO FIRED
If you engage in misconduct, the fact that others have done it and have not been fired does not alone protect you from being fired. There may be a lot of reasons why you were fired and someone else was not. You should see a lawyer to see if the failure to fire another engaging in the same or worse conduct should be used to prove you were fired wrongfully.
9. IF MY SUPERVISOR SEXUALLY HARASSES ME, I CAN JUST WALK OUT, QUIT, NOT TELL ANYONE AND BRING A LAWSUIT
While your company is strictly liable for the acts of a true supervisor, if you fail to tell anyone it happened, you may violate the doctrine of “Avoidable Consequences.” Your employer should have the opportunity to investigate such claims, take action to protect you and make the workplace safe for you. If you just walk out and don’t tell anyone, you may have serious issues of proof of the conduct and you may allow the employer to claim he or she could have protected you if he or she had known it was happening.
10. I CAN ALWAYS WORK AS AN UNPAID INTERN IN ORDER TO HOPEFULLY GET HIRED LATER.
In this economy, many people are so desperate to work that they may accept nonpaying employment in hopes that they will convince the employer to hire them when there is an opening. That is against the law. Employers who engage in that conduct are unscrupulous and should not be trusted. An unpaid intern is a very limited concept and the employer must offer you something in return for your free labor. Don’t fall for that type of promise. In most cases, the employer will just use you for as long as you will allow him to do it. See a lawyer to understand your legal rights.