Employee Rights Archives

Military? – Special Civilian Job Rights are Yours

Published on January 31st, 2017 by Alan L. Sklover

 
“ For those who have fought for it,
life has a flavor the protected will never know.”

– Author Unknown

ACTUAL CASE HISTORY: Are you or a loved one a member of the U.S. Armed Forces? National Guard? Reserves? Being called up for military service or training? Considering signing up for service or training?

If so, there is a U.S. federal law that you should know about. It provides very valuable employment-related legal rights to members of the armed forces and other uniformed services who are absent from work due to military service or training. The name of the law is the Uniformed Services Employment and Reemployment Rights Act, commonly called “USERRA.” USERRA seeks to minimize disruption to the lives of service members by ensuring that they are able to retain civilian employment and benefits while serving their country.

Simply put, USERRA provides those who perform military service (a) continuation of certain benefits during their military service, including health care coverage, (b) re-employment rights to employees of civilian employers who are returning from military service or military training, and (c) certain rights and benefits upon return, including seniority.

The idea underlying the USERRA law is to ensure that serving your country is as least damaging to your career as possible, while balancing the varied interests of the military, the employee and the civilian employer.

LESSON TO LEARN: The United States holds its military, including its members of its military and all uniformed services, in high esteem. Not only does the U.S. each year spend more on its military budget than do the next 17 countries combined, but it does a lot to care for service people during and after they serve.

One thing the U.S. does for its military service members that many are not aware of is that it gives them legal rights to (a) continued benefits during their military service, (b) re-employment in their civilian jobs after their service, and (c) no loss of accrued pension time, tenure and the like after their military service.

Those who train and/or serve in the uniformed services, as well as their loved ones, should take the time to understand these very valuable legal rights. They are far and away above any such rights given to others in American society.
The three most important things that you need to understand and take away from the Q’s and A’s below are:

    (1) NOTICE: It is important that you give written pre-departure notice, and timely pre-return notice, as well, to your employer;
    (2) RECORDS: Service members are advised to do all they can to maintain military records, including signed orders, that may be helpful in asserting USERRA rights; and
    (3) RETURN TIME: Depending on the length of your absence for service time or training, the service member will be required to report back to work within a specified period of time.

WHAT YOU CAN DO: Take the time to understand the legal rights provided to members of the U.S. uniformed services, just in case someone you know and care about may be affected. The following are the most frequently asked questions about USERRA, and the answers, including who is eligible, what USERRA rights are, and how the law works:
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“Do employees have a right of free speech?”

Published on February 15th, 2013 by Alan L Sklover

Question: I am a public servant, a teacher on Long Island, New York. 

Does my principal have the right to tell me not to talk to a particular student or employee? The particular principal actually sent the student to me and when she talked to me, he then told me that I had gone against his order, and I was sent home from my duties as teacher. 

Doesn’t this go against my First Amendment rights of free speech?

Douglas
Long Island, New York

Answer: Dear Doug: You present an interesting question, and one that many people wonder about. Here is the correct analysis:       

1. Public employees – like yourself – have “free speech” rights at work; employees of “private employers” do not. This is because the First Amendment to the U.S. Constitution says that “Congress shall pass no law abridging the right of free speech.” This has been interpreted by the Courts as saying that governmental entities – like your school board – cannot limit free speech of their employees. Since “private employers” do not “pass any laws,” the Constitutional right of free speech does not apply to their regulation of their employees’ speech at work. 

2. However, as with all of our legal rights, the right to free speech has its limits. Whenever we have rights, we have reasonable limitations on those rights, as well. You have a right to marry, but not a right to marry ten people. You have a right to drink alcohol, but you cannot do so while you are piloting an airplane. You have a right to vote, but not in a state where you do not live. As you have probably heard, you have a right to free speech, but you cannot shout “FIRE!!!” in a crowded movie theater, as that would likely cause a potentially deadly stampede toward the theater doors.   

The lesson is this: freedom is precious, but it can also be abused. Thus, reasonable limits are deemed acceptable.  

3. Our Courts have held that the Constitutional right to free speech of public employees applies to valid “issues of public concern,” but not to issues arising out of daily duties. In a well-known case called “Pickering vs. Board of Education,” public school teacher Pickering was fired for writing a letter to a local newspaper critical of the local school board. The Court ordered the school board to reinstate Pickering as a teacher because Pickering had raised a legitimate matter of public concern, and  his statements were neither recklessly false nor ones that would tend to interfere with his performance of his job. 

On the other hand, in another well-known case called “Mt. Healthy vs. Doyle,” a teacher, Mr. Doyle, lost his job after he engaged in a hand gesture commonly called “giving someone the finger” to two students. The Court upheld this firing, even though “giving the finger” has been accepted by many other Courts as a kind of permissible “speech” in other contexts.   

4. So, it seems your “free speech” rights were not violated if it was the Principal’s reasonable judgment that his order was appropriate to maintaining an orderly school, or in the student’s interests. From what you wrote, it seems that the Principal had some reason for his direction to you not to speak with a particular student, even if you may believe he was wrong or he made a mistake. While you may disagree with how the matter was handled, and what was done, it seems that the Principal’s directive, and his sending you home for not complying with it, would be upheld. No violation of First Amendment rights here.  

Douglas, I hope this clarifies things for you on this subject, and helps you guide yourself accordingly in the future. Thanks for writing in. 

My Best to You,
Al Sklover

P.S.: We offer a Model Memo Objecting to Retaliation at Work. If interested, just [click here.] Delivered by Email – Instantly! 

P.P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2013 Alan L. Sklover, All Rights Reserved.

“Can I trust Human Resources to keep things confidential?”

Published on April 19th, 2011 by Alan L Sklover

Question: I’m a technical recruiter who is paid salary and commission. Recently our company drastically changed our commission structure, making all of the technical recruiters very unhappy. When I spoke to my Manager about it, he suggested I take the issue to Human Resources.

Three of us went to the Vice President of Human Resources to share our concerns. He asked us to put our concerns in writing. We asked him if he would then keep the details of what we said confidential, and he agreed to do so, and to transmit only in general terms our thoughts and concerns to the Compensation Committee. Definitely not our names. I drafted a summary of our collective thoughts, which was approved by my two colleagues. I then sent it to the Vice President of Human Resources, with a cover note reminding him of his promise to keep our names and the details of what we said confidential, but only to share our general thoughts and concerns. 

An hour later, my Manager came into my office and asked me for a copy of what I sent to HR. He told me that he was now “in deep trouble.” Since then he has been very cold and critical to me. I have heard him tell people that I “threw him under the bus.” It seems that the Vice President of Human Resources told the Compensation Committee that my Manager instructed us to make “demands” and “fight” the new commission structure.

Did the Vice President of Human Resources have the right to violate his promise of confidentiality? 

Racquel 
Fremont, California

Answer: Dear Racquel:   

I’m sorry to say it, but you were not wise, reasonable or rational when you relied on the “promise” of confidentiality made to you by the Vice President of Human Resources. You violated what I call “The Five Rules of Human Resources”: 

a. Rule #1: Human Resources works for management, not for employees. For some reason I don’t understand, many people believe that Human Resources exists to help employees in dealing with their bosses. It is quite the opposite: Human Resources exists to help management deal with their employees. While I counsel and represent many Human Resources personnel and executives, know them to be good and honorable people, and know that they can be very kind, gracious and understanding when dealing with employees, their job is not to take care of employees, but instead it is to help management in dealing with employees.   

b. Rule #2: It is not Human Resources’ job to provide “fairness” or “justice,” but rather efficient management of – sorry to use this phrase – “Human Resources.” As members of our “SkloverWorkingWisdom Family” know, I really do not like the phrase “human resources,” because I feel it is impersonal and dehumanizing. It defines Human Beings not as persons with rights, feelings and perspectives, but instead as “resources” of commercial enterprises. I think it evokes a sense of ownership, exploitation and even slavery. Let’s face it: the job of Human Resources is to “efficiently acquire, maintain and dispose of human resources,” just as a commercial enterprise “acquires, maintains and disposes of” other resources, like fuel, furniture and equipment. History teaches us that before people are comfortable with hurting other people, first they must “dehumanize” them. I detest dehumanization. Don’t ever look to Human Resources for fairness; that’s got nothing to do with their job.  

c. Rule #3: Don’t expect Human Resources to “enforce the rules.” Organizations have certain “rules” that they call policies, procedures and practices, among other things. All employees are expected to follow those “rules.” However, don’t expect Human Resources to be the “enforcers” of the rules. If they were, we’d make them wear badges, give them cars with sirens, and call them the Police Department. It is just not rational to expect Human Resources to “come to the rescue” of employees being treated in violation of the “rules.” 

d. Rule #4: Human Resources is not bound by any “promises” of confidentiality. Each person has something of a duty to others to fulfill their promises, if they can. However, Human Resources has a greater duty to Management to fulfill: to report what they have learned about employees to Management if they feel it might help Management “efficiently and effectively manage their human resources.” (There’s that term again.) While a promise is a promise, a promise of confidentiality by Human Resources is not a promise you can enforce, or for that matter, depend on.

e. Rule #5: Most of all, never expect a Human Resources representative to risk his or her job for yours. So many times I have seen employees expect Human Resources representatives to courageously risk their own jobs in order to do “what is right.” It is simply unreasonable to expect any other person to risk his or her job for you. Sure, it would be a courageous thing to do, but to expect that is just not reasonable, or rational.

No one should think that I do not like Human Resources professionals. I do. In fact, I think they have a very difficult role in this new world we live in, in which many employers feel they are under so much pressure they must do things they wish they did not have to do. Still, we all need to be honest – with ourselves and with each other – about the job, role, responsibilities and limitations of the “Human Resources” department and its staff members, who we used to refer to as “Personnel,” to use the “personal” word I prefer.      

Best,
Al Sklover

Received a Performance Improvement Plan (“PIP”)? Our Top Seller: Model Memo “Pushing Back” at a PIP “What to Say / How to Say It.™” Just [click here.]

P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

© 2011 Alan L. Sklover, All Rights Reserved.

“How long do employers have to retain personnel records to make them available to ex-employees in Massachusetts?”

Published on November 7th, 2010 by Alan L Sklover

Question: How long are employers required to have Human Resources records available so they can be examined by ex-employees? 

         Jen
         Stockbridge, Massachusetts

Answer: Jen, if a Massachusetts employer has 20 or more employees, it is required to retain Human Resources records for a period of three years from that employee’s last date of employment.

Massachusetts “Personnel Records Statute,” (Massachusetts General Law Chapter 149, Section 52C), gives former employees, upon written request, the right to review their personnel records during normal business hours, or to make a copy to take home. This law also gives former employees in Massachusetts the right to request correction or removal of incorrect information. 

Massachusetts employers who do not comply with this law are eligible for criminal fines up to $2,500. While employees can sue for expungement of incorrect material, employees cannot sue for damages of any kind under this law.

I hope this has been helpful. If so, consider telling one or two of your friends on Facebook, LinkedIn, or other social media about our blog. We’d really appreciate that.   

           Best, Al Sklover

Want to “Climb The Ladder?” Model Letter Requesting a Raise or Promotion “What to Say / How to Say It.™” Just [click here.]

P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

© 2010 Alan L. Sklover, All Rights Reserved.

“Who Owns The ‘Creative Things’ You Produce At Work?”

Published on October 22nd, 2010 by Alan L Sklover

“A hunch is creativity trying to tell you something.”

– Frank Capra

ACTUAL CASE HISTORY*: Darren, 55, a packaging engineer from Western Pennsylvania, worked for an international pharmaceutical firm. People described Darren as a “natural-born tinkerer.” If he wasn’t fixing a clock, he was taking apart a computer just to see how it worked.

As a packaging engineer, Darren spent his entire day trying to figure out how to make packaging for pharmaceutical companies work better. “Better” in this context meant easier to open, preventing the medication from contaminants, and non-toxic. Long ago, if you bought aspirin, for example, it came in a bottle of 50 or 100 tablets with a simple screw-off top. Darren was a member of the team that first thought of, and then engineered, those small “foil packs” inside of which you can now buy just two aspirins at a newsstand, or even at a gas station.

Darren was also one of the people who came up with the idea (some say “nightmare”) of the “child-proof” container. And it was Darren’s team that perfected those foil-backed “push-through” pill packets. At times Darren mesmerized us with accounts of the advantages and disadvantages of different packaging materials, different shaped containers, and even different color packaging. Also, certain packaging kept medicines “fresh” for a longer time, thus extending their expiration date and their “shelf-life.”

Years ago Darren wondered to himself, “We put expiration dates on our packaging, but we never tell people how they should dispose of expired medications.” He discussed the issue with his colleagues and his manager, but the only response he received was, “Well, they should just throw them out.” Because so many new kinds of packaging are now required to be biodegradable, Darren knew that sooner or later, all of these discarded medications would get into the environment, and then into our drinking water.

On Darren’s own time at home, he researched the subject, and found to his surprise that there didn’t seem to exist any consumer-oriented instruction booklet telling consumers how to safely dispose of outdated medications. So, as was Darren’s nature, he spent his spare time on the weekends over a period of three months preparing a clear, concise and consumer-friendly booklet explaining the “why” and “how” of safe disposal of outdated medications. As was also Darren’s nature, he passed it around to his colleagues for comment.

A call from his employer’s Legal Department came two weeks later. Darren was called to a meeting at which time he was reprimanded for having placed “written by Darren Smith” below the title of the booklet. At the meeting he was also reprimanded for placing “© 2009 Darren [Smith]” at the bottom of the first page of the booklet. He was told that he had violated his company’s Code of Conduct by “attempting to steal intellectual property,” and a note to that effect would be placed into his Human Resources file. Darren was aghast and crestfallen.

Darren was certain that the attorneys at the meeting did not understand that he had written the booklet on his own free time, on his own initiative, on his home computer, without company resources after his manager expressed no interest in the idea. When Darren calmly explained these things to the attorneys, they didn’t think any of it was relevant.

Darren then called our firm for a telephone consultation. In that consultation, we explained to Darren that – despite the seeming unfairness of it all – the company’s attorneys were right: the booklet “belonged to” the company, so his name on it could be characterized as his attempt to “own” it, and the law was quite clear on both of these points.

Darren was bitterly disappointed. He shared his feelings that he would not likely take such initiative again, especially if it was going to threaten his job. No matter how much he cared about the environment, no matter how much he was loyal to his employer, his first concern had to be his family’s well-being, and keeping his job was necessary for that.

LESSON TO LEARN: The law in the United States, and in almost all other countries, is clear: if you “create” a document, formula, invention or other “creation” related to the subject of your employment, it is presumed – unless you have a written agreement to the contrary – you did it for the benefit of the employer, and the employer is deemed by law to be its “author,” “creator,” and owner.

Section 101 of the United States Copyright Act calls materials created by employees as part of the normal scope of their employment “works for hire” (sometimes called a “work made for hire”), and provides that the employer, not the employee, is the “author” of the work created. (In many other countries, this is called “corporate authorship.”) It is an exception to the general rule that whoever creates a work is the work’s author. Constitutional law in the U.S. provides that, where our Congress has enacted laws affecting certain areas of our lives, states cannot create laws to conflict with the federal laws. This is called the “doctrine of preemption,” and is firmly accepted by all courts. So state laws can’t change this.

But Section 201 of the United States Copyright Act also provides that the employer is not the author if “the parties have expressly agreed otherwise in a written instrument signed by them.”

It does not matter if your creation was conceived and developed on your own time, at your own expense, using your own equipment and resources, or at your own initiative. All that matters is that (a) you are employed, (b) your creation is related to your employment, and (c) there is no agreement between your employer and yourself that expresses that you are the “creator” and “owner.”

These days, many corporate employers are going one step further to ensure they are the owners of the “intellectual property” produced by their employees. They have employees sign a document, often called an “Agreement Regarding Inventions and Creations,” or words to that effect, in which they have all employees agree that the employer is the owner of all such creations, and that the employee will sign any papers necessary to prove that.

The key lesson to learn is this: when it comes to “creations” related to your work, your own “creative initiative” may not be to your benefit. In fact, as in Darren’s case, it could be to your detriment. If you want to create any material related to your work, you must either: (a) accept that you will not be deemed its author and owner, or (b) make sure you first obtain in writing from your employer a letter, agreement or other written expression that you are the creation’s sole author and owner, or at least that you will share “credit for creation” and ownership rights.

WHAT YOU CAN DO: Some people say, “Can’t I just create this material, and not tell my employer?” Sure, you can, but if it ever should become known that you did – as it likely would if the “creation” was ever published or commercialized – the employee would likely lose in five ways: first, regarding all rights to the material; second, significant legal expense; third, being required to pay back to the employer any monies already received for the creation; fourth, quite significantly, in terms of your reputation; and fifth, possibly most troubling, it could even cost you your job. It is for these reasons, and others, that the decision to obtain a prior agreement as to authorship and ownership seems to us to be the preferable, more practical and more prudent approach.

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Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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