7th edition Your Rights in the Workplace by Attorney Barbara Kate Repa Nolo’s Legal Updater We’ll send you an email whenever a new edition of your book is published! Sign up at www.nolo.com/legalupdater . Updates @ Nolo.com Check www.nolo.com/updates to fi nd recent changes in the law that aff ect the current edition of your book. Nolo Customer Service To make sure that this edition of the book is the most recent one, call us at 800-728-3555 and ask one of our friendly customer service representatives. Or fi nd out at www.nolo.com . e law changes, but Nolo is always on top of it! We off er several ways to make sure you and your Nolo products are always up to date: NOLO always up to date 2 1 3 We believe accurate and current legal information should help you solve many of your own legal problems on a cost-effi cient basis. But this text is not a substitute for personalized advice from a knowledgeable lawyer. If you want the help of a trained professional, consult an attorney licensed to practice in your state. NOLO please note 7th edition Your Rights in the Workplace by Attorney Barbara Kate Repa Seventh Edition May 2005 Editor LISA GUERIN Legal Research ELLA HIRST Illustrations MARI STEIN Cover Design SUSAN PUTNEY Book Design TERRI HEARSH Indexer JEAN MANN Proofreading JOE SADUSKY Printing CONSOLIDATED PRINTERS, INC. Repa, Barbara Kate. Your rights in the workplace / by Barbara Kate Repa 7th ed. p. cm. ISBN 1-4133-0188-6 (alk. paper) 1. Labor laws and legislation United States Popular works. 2. Employee rights United States Popular works. I. Title. KF3455.Z9R47 2005 344.7301 dc22 2005043098 Copyright © 1994, 1996, 2000, 2002, and 2005 by Nolo. ALL RIGHTS RESERVED. Printed in the USA No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior written permission of the publisher and the author. Reproduction prohibitions do not apply to the forms contained in this product when reproduced for personal use. For information on bulk purchases or corporate premium sales, please contact the Special Sales Department. For academic sales or textbook adoptions, ask for Academic Sales. Call 800-955-4775 or write to Nolo, 950 Parker Street, Berkeley, CA 94710. Acknowledgments Many people gave their time, expertise, and wise counsel to help make this tome possible. Some of them merit special thanks, including: Marcia Stewart, editor extraordinaire on the second edition, whose special brand of encouragement worked its way onto every page. Amy DelPo, editor on the fifth edition, who cheerfully shoveled fodder and good karma my way—and judiciously spotted the antiques. Lisa Guerin, editor on this edition, whose sense of smarts helped make the book legally au courant—and whose sense of humor made it fun to work together again. Ella Hirst, research maven and former relative, who never met a statute too elu- sive for her—she researched the charts in this book, greatly improving it in the process. Susan Cornell, who took the index to new heights with her nitpicking mind. Stanley Jacobsen, who worked tirelessly and pleasantly to keep the facts cur- rent—and provided an endless supply of blue M & Ms all along the way. And finally, a heartfelt thanks to my beacons—Joel and Thomas. Dan Lacey, one of the primary authors of the first edition of Your Rights in the Work- place, died in 1992. Some of his words live on here. 1 Your Rights in the Workplace A. Analyzing Your Options 1/2 B. Talking It Over With Your Employer 1/3 C. Documenting the Problem 1/4 D. Considering Legal Action 1/5 2 Wages and Hours A. The Fair Labor Standards Act 2/3 B. Rights Under the FLSA 2/8 C. Calculating Your Pay 2/22 D. Calculating Workhours 2/23 E. State and Local Laws 2/31 F. Payroll Withholding and Deductions 2/53 G. Enforcing Your Right to Be Paid Fairly 2/78 H. Filing a Complaint or Lawsuit 2/78 I. Violations of State and Local Laws 2/79 Table of Contents Table of Contents 3 Health Insurance A. No Legal Right to Coverage 3/2 B. Coverage for Current Employees 3/3 C. Coverage for Former Employees 3/6 D. Individual Health Insurance 3/9 E. State Laws on Insurance Continuation 3/11 F. Utilization Review 3/24 4 Family and Medical Leave A. The Family and Medical Leave Act 4/2 B. State Laws on Family Leave 4/12 C. The Pregnancy Discrimination Act 4/22 D. Balancing Work and Family: Other Ways to Cope 4/24 5 Privacy Rights A. Your Personnel Records 5/3 B. Workplace Testing 5/21 C. Surveillance and Monitoring 5/47 D. Searches and Seizures 5/52 E. Clothing and Grooming Codes 5/53 F. Conduct Codes 5/54 6 Health and Safety A. The Occupational Safety and Health Act 6/3 B. Enforcing OSHA Rights 6/5 C. Criminal Actions for OSHA Violations 6/13 D. State and Local Health and Safety Laws 6/13 E. Tobacco Smoke in the Workplace 6/16 F. Pesticide Laws 6/19 G. Hazardous Substances Laws 6/19 H. Violence in the Workplace 6/31 [...]... A/14 Index Chapter 1 Your Rights in the Workplace A Analyzing Your Options 1/2 B Talking It Over With Your Employer 1/3 C Documenting the Problem 1/4 D Considering Legal Action 1/5 1/2 YOUR RIGHTS IN THE WORKPLACE aybe you’re just curious Or maybe you’re the cautious type of soul who likes to think ahead and prevent a wrong before it happens But the best... suffice, save yourself the time and expense of filing a legal action YOUR RIGHTS IN THE WORKPLACE B Talking It Over With Your Employer Do not overlook the obvious: First try talking over your workplace problem with your employer An intelligent discussion can resolve most wrongs—or at least get your differences out on the table Most companies want to stay within the law and avoid legal tangles So the odds... present, and the conversation surrounding it If others heard the statement, try to get them to write down their recollections, and have them sign that statement Or have them sign your written version of the statement, indicating that it accurately reflects what they heard We’re All in This Together Coworkers may be reluctant to help you with your workplace complaint, whether by giving statements of their... sue your employer over a violation of a law requiring paid time off for jury duty or a single miscalculation of overtime pay But knowing whether a particular transgression can be punished with a fine, a criminal conviction, or an order to rehire you is the kind of information that can make your employer take your complaint more seriously in the bargaining process 1/ 3 Stick to the facts Keeping your. .. you will be in the untenable position of convincing a judge or jury to believe your word alone 1/6 YOUR RIGHTS IN THE WORKPLACE Taking action will require time and effort You can save yourself some time and possibly some grief by using this book to objectively analyze your job loss or problem If possible, do it before you begin talking with a lawyer about handling your case Once again, the keys to... confident you will be in presenting your problem This book offers a wealth of information about the basic laws of the workplace and tells you where to turn if you need more specific information to clarify your rights Also, the book contains a number of charts summarizing state laws on various workplace rights, including specific penalties that may be imposed on employers who violate them Your best course... rather than independent contractors, and the scales remain tipped that way Key facts cited by the courts: The relationship appeared to be permanent, the workers lacked bargaining power with regard to the terms of their employment (Martin v Albrecht, 802 F.Supp 1311 (1992)), and the individual workers were economically dependent upon the business to which they gave service (Martin v Selker Bros., Inc.,... listing in the appendix A Analyzing Your Options If something is amiss in your workplace and you have turned to watercooler wisdom, commuter train tales, or locker room skinny, you may have come away with the same urging: Sue For most people, that is bad advice The courtroom is usually the worst place to resolve workplace disputes Most of them can be handled more efficiently and much more effectively in. .. work in such circles, you may well know who you are But the law specifically requires that an exempt computer specialist’s primary work duties must involve: • applying systems analysis techniques and procedures—including consulting with users to determine hardware, software, or system functional specifications 2/6 YOUR RIGHTS IN THE WORKPLACE • designing, developing, documenting, analyzing, creating,... own experiences or by backing up your story of what has occurred You may run into the same common reaction: “I don’t want to get involved.” People may be afraid they will lose their own jobs or suffer in some other way if they pitch in and create bad blood with the company You may be able to persuade them to help you by reassuring them that the same law that prohibits the initial wrongful treatment . save yourself the time and expense of filing a legal action. YOUR RIGHTS IN THE WORKPLACE 1/3 B. Talking It Over With Your Employer Do not overlook the obvious: First try talking over your workplace. here. 1 Your Rights in the Workplace A. Analyzing Your Options 1/2 B. Talking It Over With Your Employer 1/3 C. Documenting the Problem 1/4 D. Considering Legal Action 1/5 2 Wages and Hours A. The. a fine, a criminal conviction, or an order to rehire you is the kind of infor- mation that can make your employer take your complaint more seriously in the bargain- ing process. Stick to the