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10 Things Your Boss Cannot Legally Do at Work

Posted by Eric Kingsley | Sep 23, 2023 | 0 Comments

10 Things Your Boss Cannot Legally Do At Work

Many of us put up with bad behavior and negativity in the workplace. However, there are limits set by the law when it comes to what is acceptable and what is not acceptable in the workplace.

It is important to know and understand your rights when it comes to what your boss can or can't legally do. There are also steps you can take if your employer flouts these laws, which are in place to help ensure that employees' rights are protected.

Below are 10 things your employer cannot legally do at work.

1. Discriminate Against You

Workplace discrimination is one of the common forms of discrimination people face on the job. According to a 2021 report by Glassdoor, 61% of U.S. employees say they have experienced discrimination in the workplace based on age, race, gender or sexual orientation. A study by the Williams Institute found that 45.5% of LGBTQ workers faced discrimination at work. Those who have faced discrimination at work can learn how much you get from a discrimination lawsuit here.

Also, Gallup found that 24% of Black employees and 24% of Latino employees in the U.S. have experienced discrimination at work. And even though many businesses work remotely now, discrimination continues, 80% of employees surveyed said they experienced discrimination over remote channels such as video conferencing, chat apps or over the phone.

Discrimination occurs when you are treated differently at work because you belong to a protected class. In other words, when you have been treated unfairly because of who you are or how you are perceived, you have been discriminated against. Some common examples of discrimination in the workplace include:

  • Pay discrimination between the genders, for example, when women get paid less than men for doing the same or comparable job

  • Disability discrimination, such as when those with a disability cannot access certain parts of the facility making it impossible for them to work at the business

  • Discrimination based on someone's sexuality, for example, refusing to employ someone because they are bisexual or gay.

If you believe that you are being discriminated at work because of who you are, it is important that you contact the human resources department to file a complaint. If you are not being heard or if no action is being taken, contact an experienced Los Angeles discrimination attorney to better understand how to protect your legal rights.

2. Punish You for Talking About Salary

Your boss cannot punish you for talking about salary in the workplace. Your right to communicate with other employees at your workplace about your wages is protected under the National Labor Relations Act (NLRA). Wages are a crucial term and condition of employment. You may need to discuss wages before, for example, organizing a union.

If you are an employee who is covered by NLRA, you may also discuss wages in face-to-face conversations as well as written messages. While using online communications such as social media, your employer may have specific policies against using their equipment. Still, policies that specifically bar you from discussing wages are unlawful. You may also talk about salaries when not at work, when on a break and even during work if employees are permitted to have other non-work conversations. Your right to do so is protected, whether or not you are represented by a union.

Protected conversations about wages may include:

  • Having conversations about how much you and your colleagues and managers make.

  • Presenting joint requests concerning pay to your employer.

  • Organizing a union to negotiate pay increases.

  • Approaching an outside union seeking help bargaining with your employer for better pay.

  • Approaching the National Labor Relations Board to obtain more information about your rights under NLRA.

  • Discussing and engaging in outside activity with other employees regarding public issues that might affect your pay such as minimum wage.

  • Having the right to not engage in conversations about pay.

Your boss may not punish you or retaliate against you in any for having conversations about salary. Your boss is also not allowed under the law to question you about any conversation you may have had, threaten you for having it, or put you under surveillance for such conversations. In addition, your employer may not enact a policy or ask you to sign a hiring agreement that bars you from discussing your wages or require you to get the employer's permission in order to have such discussions. If your employer commits any of these violations, you can file a complaint with the NLRB.

3. Make You Work Unpaid Overtime

Some employers try to get employees to clock out while still performing some job duties. This is illegal under California law. A California employer is prohibited from requiring employees to work "off the clock" without compensation. Off-the-clock work may include pre-shift duties, post-shift work, administrative duties, clocking out an employee while they are working, and performing work during a meal or rest break. If you do work off the clock, it must be compensated at your regular hourly wage. If any off-the-clock work is performed that puts you over the maximum number of work hours, you are eligible for overtime pay.

According to California overtime laws, if you qualify for overtime pay, your boss cannot legally make you work over 40 hours in a workweek without paying time and a half. You are entitled to 1.5 times your usual pay rate for any overtime hours that you work. If your boss forces you to work overtime hours, but refused to pay you for doing that work, you may have a wage and hour lawsuit against your employer.

The total amount of damages available in a lawsuit for unpaid wages will depend on the specific situation. You may be able to collect the full amount of the unpaid wages, any interest on those wages, reasonable attorney's fees as well as court costs. If your employer violated federal labor laws, you may also be able to collect liquidate damages, which is equal to the amount of unpaid wages - or double damages. Under California's labor laws, if your employer deliberately refused to pay overtime, you may be eligible to receive double damages. Liquidated damages include an amount equal to the unpaid wages plus interest on that amount.

4. Ask Illegal Questions During Hiring

Not many of us know that federal and state employment laws protect our rights even before we become employees. Your boss cannot discriminate against you even when you are applying to a job or interviewing for a job. There are a number of things your boss cannot do during the hiring process, which includes asking you illegal questions during your job interviews.

Here are examples of questions that are illegal in a job interview:

  • Where do you live?

  • Do you use drugs, or have you used them in the past?

  • How old are you?

  • Are you a native English speaker?

  • Do you have or do you plan to have children?

Here are examples of questions that are legal:

  • Are you comfortable taking a drug test?

  • Do you have authorization to work in the United States?

  • Will you be able to work overtime if required?

  • Can you relocate for this job?

  • Were you ever disciplined for violating a company policy in a prior job?

Employers are not allowed to ask certain questions such as age because they could lead to age discrimination during the hiring process. Employers should only ask questions that pertain to the job such as those about your work skills and experience. During a job interview, you are under no obligation to answer any of the employer's questions. If a prospective employer asks you an illegal question, you may wish to point it out right then and there. The interviewer may simply have not known that it was an unlawful question. Point it out in a professional and neutral tome or let them know you are not comfortable providing an answer to that question.

5. Pay Less Than Minimum Wage

The law prohibits employers from paying less than the minimum wage. Yet, millions of people in California, especially those who perform low-wage jobs, earn less than the minimum wage because their employers break the law. In California, the minimum wage as of Jan. 1, 2023, has been $15.50 an hour regardless of the size of the employer. The state Department of Finance has announced a 3.5% increase in the state minimum wage to $16 per hour for all employers starting Jan. 1, 2024.

Most employers in California are subject to both federal and state minimum wage laws. Local entities (cities and counties) are allowed to enact minimum wage rates. Several cities and counties in California such as Los Angeles and San Francisco have adopted ordinances, which establish a higher minimum wage rate for employees working within their local jurisdiction. In such situations, the employer must follow the stricter standard, which means that they must pay the minimum wage that is most beneficial to the employee.

So, if you work in Los Angeles, your employer must pay a minimum wage of $16.90 per hour, which higher than the statewide minimum wage. Since California's current law requires a higher minimum wage compared to federal law, all California employers subject to both laws must pay the higher state minimum wage, unless their employees are exempt under California law.

It is also important to remember that the minimum wage is an obligation of the employer and cannot be waived by any agreement, including collective bargaining agreements. Any remedial legislation written for the protection of employees may not be violated by agreement between the employer and employee.

6. Ask for "Off the Clock" Work

It is against the law for your boss to ask you do work off the clock. If your employer asks you to work before or after your regular shift without pay, that amounts to wage theft. In many cases, doing so could put your wages under minimum wage, which is a separate violation. Off-the-clock work could happen in many ways. Your boss may require you to respond to emails or take phone calls outside of work hours. Even working during your lunch hour can count as off-the-clock work. However, your boss cannot legally make you work without pay.

When you are a non-exempt employee, working off the clock means you perform job duties during the time when you are not clocked in for work. Non-exempt workers are typically paid hourly and are protected by federal and state labor laws that guarantee rights to overtime pay, meal and rest breaks and a minimum wage. Exempt workers are salaried employees who fall into a particular exemption to these legal protections under California and federal wage and hour laws.

Working off the clock is a violation of California and federal laws. Employers who ask their employees to work off the clock may be liable for back wages. This is true whether or not the employer knew or merely allowed the extra work. Both federal and state laws require that non-exempt employees be paid for all the hours they work.

Here are a few red flags that indicate that you may be working off the clock:

  • You started preparing for work or performing other pre-shift work such as prepping your workstation without clocking in.

  • Performing revisions of work made during your workday

  • Performing administrative work such as finishing up paperwork

  • Doing job training

  • Traveling between different worksites

  • Taking off or putting on safety gear that is required for work

  • Performing work-related tasks during a lunch break

7. Fire You for Reporting Law-Breaking

Your employer cannot fire you or lay you off because you reported illegal activity at work. In such cases, you may have a claim for whistleblower retaliation. Whistleblowers who protect public health and safety are protected under the law. You are protected from retaliation if you report or file a complaint against your boss or company for violating the law. Despite these legal protections, it is sadly common for employers to fire whistleblowers. If you are reporting illegal activity, document your company's response and contact an experienced Los Angeles whistleblower lawyer, should you experience retaliation.

Some laws that bar certain types of illegal corporate behavior specifically protect employees who blow the whistle. For example, the Sarbanes-Oxley Act, passed in 2002 to protect investors from corporate financial wrongdoing, includes protections for whistleblowers who report financial irregularities and shareholder fraud.

If your employer fires you for refusing in engage in illicit activities, you may also have a wrongful termination lawsuit. For example, if a nursing home fires a staff member for refusing to falsify hours to get more reimbursement from Medicare or Medicaid, that is unlawful and the employee may be able to file a wrongful termination lawsuit.

Retaliation and whistleblowing claims can be quite complex. The rules for bringing these types of claims may vary depending on the specifics of your case. An experienced Los Angeles employment lawyer can help you determine whether you have a claim based on a specific statute or a public policy violation. If you are successful with your claim, you may be able to seek compensation for the wages and benefits you lost as a result being wrongfully terminated; get your job back or receive an award for the wages you will lose until you find a new job; and attorney's fees and court costs.

8. Ignore Toxic Workplace Behavior

Your employer has a responsibility to stop hostile behavior at work. Everyone has the right to work in a professional environment that is free of harassment and discrimination. When your boss turns a blind eye to toxic behavior at work, employees' rights are violated. If the hostile behavior at the workplace includes harassment based on protected characteristics such as sex, race or age, you might have a claim for a hostile work environment.

There are a number of negative behaviors that can make a workplace toxic including yelling, bullying, intimidation and manipulation. These are situations in which workers normally feel unsafe. They may find themselves in fear of being targeted or may even be afraid of speaking up for themselves. Many companies that have a toxic work environment tend to have lower productivity and higher turnover. These workplaces are also more likely to allow harassing behavior or discriminatory practices. Employees in these workplaces experience higher stress levels. Some might even have trouble continuing to do their job duties.

According to the Title VII of the Civil Rights of 1964, employers are not allowed to discriminate against protected classes such as race, religion and age. If you suspect that you have become a target for workplace discrimination or harassment, your lawyer can make a case under Title VII. When your work environment is stressful or hostile, it could be extremely unpleasant. However, there is a difference between a bad workplace and an abusive one. If your situation has worsened, you may be entitled to damages.  You can read more about hostile work environment average settlements here.

9. Retaliate Against You

It is also illegal for your boss to retaliate against you. Retaliation in the workplace means punishing an employee who reports workplace violations or who engages in other protected activities. For example, an employer may retaliate against an employee for reporting their boss to the human resources department. Retaliation can also include any type of adverse employment action such as demotion, reduced pay or even job termination. Employers are barred from punishing employees for engaging in legally protected activities.

Employees have a right under the law to participate in certain protected activities including filing complaints about discrimination or harassment in the workplace, acting as a witness in an investigation or reporting violations of minimum wage or overtime laws. Signs of retaliation include job termination, denying raises, giving poor performance reviews to employees.

If you suspect that your employer has retaliated against you, you can file a lawsuit for lost wages and emotional distress. In this type of lawsuit, you will need to show evidence that your employer violated a workplace retaliation law.  A knowledgable Los Angeles retaliation attorney will help you determine whether you have a workplace retaliation case.

Retaliation can be proved by documenting your actions and any retaliation by a supervisor. This can include being fired, being passed up for a promotion or losing pay or benefits. If you believe you have been retaliated against, make sure you keep detailed records of your interactions with supervisors and human resources. If the retaliatory action came after protected activity, you may be able to prove that your employer violated the law. You can learn more by visiting our article on what is your retaliation claim worth.

10. Pay You Less for an Illegal Reason

It is lawful for employers to pay workers different wages. However, your boss cannot pay you less for a reason that is illegal. Such a pay discrepancy qualifies as wage discrimination. It is illegal for employers to pay someone less because of their gender, race, disability or some other protected category.

For example, employers cannot pay women less than men for the same work. It is also illegal for employers to pay someone with a disability less because of their disability. Wage discrimination can also include differences in benefits or other parts of the compensation package. For example, not providing health insurance benefits to female employees while offering it to male employees is a form of wage discrimination.

The best way to find out if your employer is engaged in wage discrimination is by speaking with your coworkers to see how much they make. When it comes to proving wage discrimination, it is important to remember that your job duties matter much more than your job title. If you are facing wage discrimination, you can sue your employer. There may be legal reasons why you are being paid less than a counterpart and your employer may try to offer justification. An employer might try to offer justification by pointing out seniority, merit or some other reason.

If you believe you have suffered wage discrimination, such as a violation of the Equal Pay Act, you may go directly to court and are not required to file an EEOC complaint beforehand. The time limit for filing a complaint with the EEOC and the time limit for going to court are the same - within two years of the alleged violation. In the case of a willful violation, within three years.

Understanding and Protecting Your Rights

If you believe your boss or employer is acting unlawfully, it is important that you first clearly understand the law and your rights. When you are well aware of what your boss cannot legally do, you have the power to take action. It is also important that you make a plan for what to do next. Preserve all evidence and reach out to an experienced Los Angeles employment lawyer. At Kingsley & Kingsley Lawyers, our knowledgeable lawyers offer free consultations. We will help you come up with a plan to protect your rights and hold employers accountable for violating laws.

About the Author

Eric Kingsley

Eric B. Kingsley is a 2023 "Best In Law" Award winner and has litigated over 150 class actions. He is also an AV peer rated attorney and a prolific speaker at various seminars on employment law.

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