Miscellaneous Archives

Your Complaint Labeled “Baseless”? Consider an “Investigation Push Back Letter”

Published on July 25th, 2017 by Alan L. Sklover

 
“ To err is human.
To blame it on someone else shows management potential.”

– Unknown

ACTUAL CASE HISTORY: Gary, 44, was a staff writer for an online entertainment industry blogsite. Most of his writing in recent years was about trends in subscriptions to live streaming music. His special expertise was in data collection and analysis to spot trends, and he was widely known as an expert in that area.

Gary’s analysis of live-streaming subscriptions lead him to the firm conclusion that certain of the largest live streaming music companies – indeed, the largest ones in the music industry – were losing more and more subscription customers to their smaller, more focused, and nimble competitors. When he wrote a significant article about this trend, his editor refused to publish it, claiming that it was replete with illogical assumptions on Gary’s part. This had never happened to Gary before in his 20 or so years as an entertainment industry writer.

Separately, two colleagues approached Gary in confidence, and shared with him that the blogsite’s editor had admitted to them that she declined to post his article because she was afraid of backlash – in the form of less advertising – from the larger streaming services, who were the blogsite’s “bread and butter.” They even shared an email in which the editor claimed to have been pressured to do so by the blogsite’s owners.

Gary then submitted to Human Resources a formal complaint of breach of his contract provision that forbade editorial decisions being made on financial considerations, and also that this was a breach of ethics and company policy. A two-week “investigation” by the blog site’s outside lawyers concluded only that “We did not find that anything improper has taken place,” despite the emails, the witnesses, and the circumstances that clearly showed otherwise.

Only after Gary brought the situation to the attention of the company’s CEO and Board of Directors did real progress toward addressing the problem begin to take shape.

LESSON TO LEARN: The most important lesson my mother taught me is that, “Without accountability, you really can’t expect responsibility.” Let’s face it: if failure to pay your taxes was not illegal, and no one checked whether or not you did, would you really do so? (As a lawyer, I must advise you that you need not answer that.)

Let’s all simply accept the reality that the same thing happens at work: many managers will not do the “right thing” if no one will hold them accountable for their failures to do so. And that is why they often hire “investigators,” not to determine the truth but to protect themselves from it.

Over my 35 years as an advocate for employees, many times I’ve helped clients file claims or complaints with their employers’ HR department, compliance department, and legal department of wrongful behavior against them by means of (a) discrimination, (b) harassment, (c) hostility, (d) retaliation, (e) dishonesty, (f) fraud (especially regarding Performance Improvement Plans), (g) threats of violence, and other misconduct by their managers or colleagues. In past years, some of those investigations found that the complaints were fully justified; other times, it was concluded that there was no basis for the complaint. The reasons given for not finding a basis for the complaint were often shared, and included (i) a misunderstanding of what was said or done, (ii) the alleged “offense” was only a very minor transgression, and (ii) the alleged “offense” may have taken place, but it was done in error, that is, without wrongful intention.

Increasingly, however, employers’ investigators – whether Human Resources, in-house Legal Staff, Employee Relations, or external investigators, such as law firms – never, ever seem to find any wrongdoing. It’s as if we now live and work in a “world of angels.”

That is because “investigators” are almost always tasked not with determining the truth, but rather with three specific objectives, namely, to:

    1. Gauge Risk: To gauge the amount of risk posed by the complaining employee and his or her complaint, to both senior management, personally, and the organization or company;

    2. Diminish Risk: To frustrate the employee’s efforts to exercise his or her legal rights, determine the truth, protect themselves, and hold the “guilty” persons accountable for their wrongdoing, misconduct or negligence; and

    3. Divert Accountability: To ensure that no one – and most of all members of senior management – are not held accountable for wrongdoing, what we call brought into the “zone of accountability.” Said a bit differently, making sure that “the buck” does not stop on anyone’s desk.

And, it is close to never these days that investigators are willing to share the reasons “nothing wrong was found,” because that, itself, would raise a risk. This is so even when they are presented with such strong evidence of wrongdoing as, for examples, (a) incriminating emails, (b) damaging documents, (c) credible witnesses, (d) damning circumstances, and even (e) admissions of wrongdoing.

Sound a bit paranoid? Well, consider that Wells Fargo Bank internal and external investigators “investigated” internal wrongdoing for five years and fired over 5,000 of their branch personnel for opening up non-existent accounts, but found not a single thing wrong, in error, or even questionable about the conduct of senior management who both (a) directed, coordinated and collected bonuses of tens of millions of dollars as a result, and (b) were not even criticized, until Congress had open hearings about it and exposed this gross dishonesty and rank hypocrisy.

The ultimate issue is this: “Who is investigating the investigators?” The “secret” to truly resolving this dilemma is to make “someone in authority” accountable for what has taken place, and that “someone in authority” is almost always your employer’s senior-most management. When they are brought into the “Zone of Accountability,” you have significantly more leverage, which can be put to significantly better effect.

WHAT YOU CAN DO: These are the several steps you should consider taking in order to get past, over and beyond such “blindness to wrongdoing” on the part of “investigators” of any complaint you file at work:
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Is it RIGHT to do THAT? Ethics Clarified by Six Questions

Published on September 20th, 2016 by Alan L. Sklover

“If you don’t want anyone to know what you are doing, just don’t do it.”

– Yiddish Proverb

ACTUAL CASE HISTORY: Amy, a friend of many years, called my office one day, asking if she might speak with me confidentially. And she didn’t want to speak on the telephone. So we agreed to meet in a coffee shop the next day.

What she shared with me was quite unusual, and disturbing: she was a Senior Project Manager with a large real estate and construction firm. For almost a year she had been working on the construction of one of New York City’s most famous “new landmarks” and had encountered a problem. She was asked to do something that made her nervous. She didn’t know what to do.

Recent tests on the building’s concrete foundation showed mixed results. Since the tragedy of 9/11, foundation strength standards had been raised, and only about 2/3 of the building’s tests showed sufficient strength. Although not really a part of her job, she was brought in to the central office and was asked to “cherry pick” the positive reports, and discard the reports showing deficiencies, before submission to the City’s Department of Buildings. To say the least, she was frightened.

At least those were the facts as Amy knew them. Since she was not an engineer, and was not specifically trained in reading the reports, she was relying on the discussions among the engineers on site. She understood that there was a problem from conversations with engineers she believed to be knowledgeable in these matters. And she was suspicious from the very moment she was asked to present these reports to City officials and insurance representatives, as her usual duties had nothing to do with foundation tests. Was she, she wondered, being set up as a scapegoat?

Was there a “right” or “ethical” thing to do? Whatever was the ethical thing to do, could it hurt her job and career? These were very weighty concerns.

LESSON TO LEARN: Issues like the ones Amy faced are not that unusual. These days, it seems nearly every company is under pressure from investors and others to (a) cut corners, (b) bend the rules, and (c) twist the truth, usually in the name of cost savings or deadline pressures. It seems more often than in previous times that commercial considerations are coming into direct conflict with ethical concerns.

The issue might be one of public safety, or it might be a matter of tax evasion. Or pressures to cheat customers. One day it might be one issue; the next day it might be a different one. Whatever the issue, the dilemmas abound. It’s often hard to know what to do, when competing pressures are upon you. And those pressures can take their toll.

For those in this circumstance, we offer a rather simplified analytical tool that we sometimes call “The Six Questions to Ethical Clarity.” It is a set of basic, simple questions to ask yourself to figure out what is right to do when you’re simply not sure.

One thing about what is “right” to do: it can depend on one’s experience, one’s perspective and one’s judgment. That is, we all sometimes have “blind spots” in different situations. For that reason the question “Is it right to do?” often suggests getting the views of others with experience, perspective and judgment you trust. Just think about it: even the greatest ethicists of all time can and do disagree at times about “Is it RIGHT to do THAT?

WHAT YOU CAN DO: We do not claim any exclusive right to these six questions, because the ideas underlying them are commonly found in published articles, like this one, about ethical dilemmas in different situations. However, we present them to you in the context of issues that arise during employment, along with certain insights gleaned from the our client experiences over three decades.
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“If the EEOC is investigating a discrimination claim, can the employer question the employee at the same time?”

Published on September 23rd, 2014 by Alan L Sklover

Question: Dear Alan: I have watched many of your website videos and love them.

An employee has filed a claim with the U.S. Equal Employment Opportunity Commission (or “EEOC”) alleging age discrimination against her employer. This person has been assigned someone from the EEOC to investigate the claim. The employer was notified of the employee’s EEOC claim and the EEOC investigation has begun.

Here are my questions: First, can the employer contact the employee directly and ask to discuss the claim over the phone during the investigation? Isn’t the employer supposed to reply to the EEOC about the claim, and not be allowed to contact the employee directly?

Second, if the employer does contact the employee directly, can the employee refuse to participate in this discussion and ask the employer to contact the EEOC?

Lenore
West Ashley, South Carolina

Answer: Dear Lenore: Thanks for your compliment about our videos. We see them as an extension of the many written materials we now offer. Wait until you see our App!

1. Filing a complaint with a government agency does not change the basics of the employment relation. There are many, many different government agencies that oversee and regulate different aspects of the employment relation, including state, federal and local agencies that regulate, among other things, (a) workplace safety, (b) overtime and minimum wage issues, (c) claims of discrimination, (d) rights to unionize, and (e) whistleblower complaints.

When an employee files a complaint with one of these agencies, the agency investigates and sometimes participates in a resolution, but the participation of a governmental agency does not change the basics of the employment relation. Rather, agencies such as the EEOC are “outside” third parties, separate, distinct and outside of the employment relation. The EEOC’s sole job is to engage in an investigation and, possibly, prosecute filed claims to see it they see evidence of illegal discrimination.

We offer Model Letters entitled “Model Letter for Objecting to Illegal Discrimination – Age, Race, Gender or Disability – to Your Employer, that you can use to help yourself if you believe you have been illegally discriminated against. To obtain a copy of one of these useful model letters, just [click here.] Delivered by Email – Instantly!

2. One important “basic” of the employment relation is that employees must reasonably cooperate with the requests of employers that are reasonably related in some way to the operation of the company. As examples, if the employer requested the employee to (a) use time sheets or time cards, (b) refrain from using the office computers for personal purposes, (c) wash hands before leaving the lavatory if the work is in a restaurant, or (d) arrange for vacation time at least a month in advance, they would all be basic requirements of cooperation with an employer’s requests related to work.

It would not be reasonable to expect an employee to agree to matters unrelated to the operation of the company. As examples, an employee has no obligation to date the employer, or vacation with the employer, or engage in similar non-work-related activities.

Failure of an employee to provide reasonable cooperation with a reasonable, good faith request of an employer constitutes insubordination, which is legal grounds for firing “for cause,” to be avoided if at all possible.

3. Indeed, in many circumstances – including after a claim of discrimination has been filed – the employer has a legal duty to take steps to investigate and prevent any further improper behavior. If an employee claims she or he is being harassed, bullied, threatened, discriminated against or retaliated against, and the employer becomes aware of the claim, it then has a legal duty to look into the matter, and if appropriate, take steps to halt further misconduct. In turn, it is an employee’s duty to cooperate in these efforts.

If and when an employee files a complaint with a government agency about the conduct of the employer, it is entirely reasonable for the employer to investigate the matter, itself, at the same time. This is so that the employer can (a) make changes to avoid further harm or danger, (b) properly answer questions the agency might put to it, and (c) prevent further instances of what was complained of.

4. However, the employer cannot use a request for cooperation as a ruse to (a) intimidate, (b) humiliate, (c) retaliate or (c) pressure the employee to drop or change his or her filed complaint. The employer’s duty to investigate and the employee’s duty to cooperate both have limits: (i) reasonability and (ii) good faith.

The employer cannot insist that the employee sit down for 24 hours straight – without a break – to answer questions. The employer cannot ask the employee questions that are unrelated to the issue at hand, or that are embarrassing. The employer cannot make the employee undergo a polygraph – often called a lie-detector – test. Any such requests are unreasonable and suggestive of bad faith, and would likely represent an act of retaliation, and therefore should immediately be reported to both the EEOC and the employer, in writing, and in detail.

Feel you’ve been retaliated against? Use our “Model Memo Objecting to HR about Retaliation on the Job” to stop it and have it reversed. “What to Say, and How to Say It,™ just [click here.] Delivered by Email – Instantly!

5. Likewise, the employee cannot in this process ask colleagues to testify falsely or destroy documents; those would be equally unreasonable and improper. Such conduct by an employee during an EEOC investigation would be improper and a violation of law, as would an employer pressuring an employee to drop or amend his or her filed claim.

6. Direct communication between employee and employer during an EEOC investigation just might result in a negotiated settlement, assuming the negotiations were not mandatory or pressured. It is often the case that an employer approaches an employee who has filed an EEOC complaint and says, in one way or another, “Would you like to settle this dispute, and if so, how would you like to do so?” If the matter can be resolved that way, everyone is well-served, PROVIDED it is not a pressured negotiation, such as “Settle on these terms, or you are fired.”

It is for this reason that, almost always, once an EEOC investigation has begun, if the employer and employee agree on a settlement, the EEOC will insist on its right to approve the settlement, as a way of making sure it has not been coerced, and seems fair.

7. If the employee ever feels retaliated against, pressured, intimidated or otherwise pressured by an employer after the employee files an EEOC claim, a second, new claim of retaliation should be filed with the EEOC, which would be a more serious violation of law than is the originally claimed discrimination. If the employee believes that he or she is being treated badly in some fashion as a result of, in retribution for, or in retaliation for filing his or her original EEOC complaint, that should be brought to the attention of the EEOC immediately, in writing, for their further investigation.

Retaliation against an employee for exercising his or her legal right to file an EEOC complaint is a more serious violation of law than would be the discrimination, itself, and often results in greater penalties and jury awards.

It is for this reason that most employers try to avoid even the perception or appearance of bad treatment of an employee who has recently filed an EEOC complaint.

Lenore, sorry for the long answer, but the many nuances of this situation seem to require a step-by-step explanation in my response. As always, I hope this is information is helpful to you, and that the EEOC matter goes well.

My Best,
Al Sklover 

P.S.: If you are Suffering from a Bully Boss, we offer Model Anonymous Complaint to Your Employer About a Bully Boss, you can adapt and use. Shows you “What to Say, and How to Say It.” To get your copy, just [click here.] Delivered to your printer by email in minutes.

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

© 2014, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

“Afraid to Take Vacation? Here’s Seven Ideas”

Published on August 26th, 2014 by Alan L Sklover

Question: Hi, Alan. I have been employed with a company for almost 12 years. I have accrued more than 400 hours of paid time off, which included vacation and sick time. If I leave tomorrow, (or they fire me) I can only be paid for 240 hours of the more than 400 I’ve accrued. 

I’m hardly ever sick and my job is so busy I cannot take more than a day or two of vacation at a time. I do make it a habit of taking a solid week in the summer and usually every Christmas holiday. But that hardly makes a dent in my accrued time off. 

My question is this: Are there any protections for employees in this situation? 

I am afraid that if I ask to take a good portion of my accrued PTO, my managers will view me as something less than a loyal employee. However, this is PTO I’ve earned – trust me on this! If I can’t use it without fear of retribution, what’s the point? 

I’d appreciate any insight you might have on this.

Christy
Hanover, New Hampshire 

Answer: Hi, Christy. It is a widely known fact that many employees – especially in the U.S. – are afraid to take off for vacation (and other paid time off, commonly called “PTO”) that they have earned. Coupled with the fear of losing your job for being viewed, as you describe it, as being “less than loyal,” and you have a recipe for loss of earned benefits, if not problems with your health. There are a few things I might suggest that might – or at least I hope will – lighten your burden.

1. First, give serious consideration to whether your fears are based in reality. You know, fears are fears, and they cannot be dismissed out of hand. I do not at all mean to trivialize your fears, or dismiss them. Rather, what I do mean to do is to ask that you examine whether your fears of retribution are based in reality. It is often the case that fears are not, and for this reason sometimes fears needlessly hold us back from enjoying our lives. 

As for a few examples, have you ever heard of a colleague being accused of being “less than loyal” for taking accrued time off? Being denied a raise, bonus, promotion on that basis? Does everyone in your department avoid taking time off like you do, or do some of your colleagues seem to find a way to enjoy their paid time off? Have you ever been treated in any negative way due to your taking the week off in the summer, and the week off around Christmas time? Just curious: have you asked friends at work if they have the same fear? These are just a few of the ways you might perform a “reality check” about your fears of taking time off. 

More than I have ever seen in my 30+ years assisting employees, it seems to me that employees are more fearful about their jobs, more fearful about possible retaliation on the job, and more fearful than ever of losing their jobs. Fears are sometimes based in reality, but sometimes they are not. Your first step ought to be to determine if “real data” exists to believe your fear of retribution is a real one. 

2. I know of no “legal protections” for employees afraid to take off vacation or PTO time, but creative “navigation” of workplace problems almost always works better than “legal protections.” Many states have laws that speak to whether employees must get paid for accrued but unpaid vacation time when they leave their employees, but I have never heard of any law that protects people from “retribution” or “being viewed as disloyal” if they take advantage of paid vacation or PTO time. (Your state of Kansas, in particular, has no such legal protection. For more information about this, go to www.dol.ks.gov.) 

I do believe, as I discuss below, that creative “navigation” is almost always your best route to fairness and success in work-related issues; not always successful, but usually more successful than relying on laws, rules or regulations. 

3. Many people in your situation use the federal FMLA law to use their extra vacation and PTO days. If by chance you or a member of your family becomes ill, injured, requires an operation, begins to need some type of therapy, or even in need of serious rest, and a physician will certify the need for your taking a medical leave of absence to assist in the healing process, by invoking the Family Medical Leave Act (usually called “FMLA”) you can take what is usually unpaid time off – but make it paid time off –by using unused vacation and PTO time. 

Such legally-protected leaves of absence can be up to 12 weeks each year, and can be one week per month (or even shorter intermittent intervals) if physician-certified as necessary and appropriate to full recovery. Such leaves are very much more palatable to others, and BY LAW cannot be retaliated against without very tough legal penalties. 

One of the ways the United States Congress made the FMLA law quite strong is by incorporating a provision that provides that any person who interferes with the exercise of FMLA rights can be individually sued, even if they acted in their corporate capacity. Such personal accountability goes a long way to prevent retaliation.

Act Wisely! Consider using our Model Memo Requesting FMLA Information, Forms and Procedures from Human Resources. It shows you “What to Say and How to Say It”™ and makes a permanent record of your request. Just [click here.] Delivered Instantly By Email to Your Printer.  

4. Consider raising your concern – in writing – directly with your Manager and/or Human Resources representative. Though it surely might sound “confrontational” to “confront” the issue with those in charge, and especially to those with authority “over” you, doing so in a non-confrontational, respectful, matter-of-fact, way – but always first in writing –might help you in at least three different ways: 

(i) First, your Manager and/or Human Resources representative might have dealt with such concerns previously, and therefore might offer a solution that you have not thought of, such as taking a paid leave of absence to gain needed education or training, as time off for those reasons tend to be more “palatable” to others;

(ii) Second, your Manager and/or Human Resources representative might agree to an unofficial “bending” of the official time-off rules, such as a half-day each Friday in the summer, especially if either they seem to get something they want as part of the “bending,” or if they view doing so to be in their interests; and

(iii) Third, your Manager and Human Resources representative have access to higher authority in the organization, and so might be able to secure a formal exception to the rules for you, such as authorizing a “buy back” of your unused time off.  

I fully appreciate that these may be the very same people you think might think less of you for taking your paid vacation and PTO time off, I really do. It’s just that people can sometimes be more “angelic” and less “devilish” than we sometimes imagine. In most cases, I believe there will be little, if any, downside risk in doing so. 

You might want to watch our Video, “Job Security – Lower Your Odds of BeingLaid Off.” Just sit back, relax, watch and listen. One of our Sklover Videos On Demand. To see our Complete List. Just [click here]. 

5. Emailing your concerns about possible retaliation is unquestionably the number one way to prevent retaliation from taking place. Imagine the following: A boss is bullying an employee. The employee writes an email to the boss, with a copy to the bully’s boss and Human Resources, and says “You are bullying me. I am filing a complaint. Do not retaliate against me, because that would be a violation of our company’s policies.” 

Do you think the boss will retaliate? Chances are that the bully would be less likely than ever to do so, as it would surely be noticed and punished. Though it may seem counter-intuitive, it does really work.  

You may be saying to yourself, “Retribution works in a far more subtle fashion – and often in ways that cannot be proven.” I would agree, but that does not mean you can’t keep careful vigil, and keep your guard up – and your email ready – at the very first sign of retaliation.  

6. Also, might you think of ways to both (a) take time off, but at the same time (b) demonstrate that you are an extremely “loyal” employee. As is often said, “Perception is more important than reality.” Using your considerable creativity, can you find ways to get others to cover some of your responsibilities yet make certain – perhaps by planning ahead, maintaining contact through email and texting, or even attending certain meetings over the internet –that you are seen as both “present” and “performing,” even if you are really fishing on the lake? The use of digital communications is making such “virtual presence” easier and easier every day.  

In fact, though I often do my work outside of my office, because of the frequency of my communications my staff sometimes swear that either I am hiding somewhere in the supply room or I have a camera overhead. You could do the same.  

When leaving employment – for any reason – ALWAYS ask to be paid for Accrued But Unused Vacation. Use our “Model Letter Requesting Payment for Accrued but Unused Vacation – with 12 Great Reasons.” It shows you “What to  Say and How to Say It.”™ To get your copy, just [click here.] Delivered by Email – Instantly!

7. None of these suggestions can be considered guaranteed, but each might be the one thing that gets you what you want, need and deserve. There are innumerable ways to address fearful situations at work. You are only limited by your imagination and your faith in yourself. The truth is this: if you are viewed as a valuable employee – through showing up on time, hard work, a positive attitude, respect for others, and a loyalty to the organization – then your managers will not consider retaliating against you for taking the time you have earned.  

Christy, I hope one or more of these suggestions helps you. Your contributing to our blog has helped me share my own thoughts, with the hope it helps others. That reminds me of the saying “God gave us two hands – one to give and one to receive.”

My Best,
Al Sklover 

P.S.: Want to learn more about workplace negotiating? Consider viewing our Sklover On Demand Video entitled “Can I Really Negotiate with My Boss?” Just sit back, relax, watch and listen. To do so, just [click here.]  

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

© 2014, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

“Is there a limit to how many hours I can be required to work?”

Published on May 29th, 2013 by Alan L Sklover

Question: Hi, Alan. I so value your newsletter, and learn a lot from it. Thank you for your words of working wisdom. I haven’t seen the following issue covered yet. 

I work from 9:00 am to 8:00 pm as a caregiver employed by a home health agency in California. I have one weekday off a week, and alternate weekends. My hours are  60 a week. 

My employer has just scheduled a mandatory two-hour meeting, which falls on my one weekday off. Working a 60-hour workweek as I do, I am understandably protective of what little time I have off. 

Can my employer insist I go to this meeting? Is there a limit to how much I can be required to work? With appreciation . . . 

P.S.: I’ve never been paid overtime, even though at times I have worked 24 hours straight.

N.R.
Sacramento, California

Answer: Dear N.R., I think you are correct: I have not addressed this issue before. Believe it or not, for most employees there is no limit on how much – or when – an employer can require they work in order to keep their jobs. However, in California there is a “kind of limit,” that might, in some weeks, apply to you. Here’s what I’ve found:          

1. To my best knowledge, there are just three groups of people who have a legal maximum number of hours they can be required to work: (a) children, (b) unionized workers, and (c) “safety-related” employees, such as airplane pilots, doctors in training, and miners. The U.S. federal law that governs most employment matters, the Fair Labor Standards Act (commonly known as “FLSA”) has no limit on the number of hours an employee can be required to work. California state law, and New York state law, have none either. I know of no other state law that sets a limit. 

(a) Children: That said, every state I know of has a legal maximum number of hours a week that a child can be required to work – in fact, even allowed to work if they want to. For example, under California state law, children aged 12 and 13 cannot be employed on any school day, either before or after school. 14- and 15-year olds can work three hours per school day, for a maximum of 18 hours a week. 16- and 17-year olds can work four hours on a school day and a maximum of 48 hours a week. 

(b) “Safety-related” Occupations: Federal laws also strictly regulate how many hours a day or a week certain occupations can work for safety reasons, including airline pilots and physicians – especially interns and residents in physician training. In other areas of public safety, maximum hours are also regulated by law. For safety reasons, strict regulations exist on the maximum number of hours miners can work in underground mines. 

(c) Collectively Bargained Agreements: Finally, most collective bargaining agreements set limits on the number of hours a unionized employee can be required to work during a work week. 

But for the vast majority of employees, there simply is no limit on the number of hours an employee can be required to work. 

2. California does, though, have a rather unusual law: an employee cannot be “discriminated against, demoted or fired” for refusing to work more than 72 hours in a work week. As you may be aware, I am not licensed to practice law in California. That said, I did a little legal research to answer your inquiry, and found this California law that, to my mind, is quite unusual: 

California Wage Order 4, Section 2(D)(1) provides that employers may not demote, fire or discriminate against employees who refuse to work more than 72 hours in a workweek, unless there is an emergency. What is an “emergency?” Another California law, Labor Code Sections 850 to 854, defines “emergency” as  “any unpredictable or unavoidable event that happens at an unscheduled time and requires immediate action.” 

Thus, while in California there is no limit on the number of hours you can be required to work, it is illegal to fire, demote or discriminate against you if you refuse to work more than 72 hours in a workweek. Since you regularly work “only” 60 hours a week, this may not apply to you. That said, you did mention that at times you have worked 24 hours straight, so in some weeks this law may very well apply to you.    

Note, too, that employees are permitted to “voluntarily” work more than 72 hours in a workweek if they “choose” to do so. Is that “choosing” always really “voluntary?” It is surely hard to say “No” to a “bossy” boss. 

3. In practical reality, it is the Federal overtime law that really serves to limit employees’ workweeks to 40 or so hours. N.R., I bet you did not know it, but the Federal FLSA law, enacted in the 1930’s, was enacted to encourage employers to “spread the jobs around,” and give jobs to more unemployed people instead of giving those who had a job 50, 60 or more hours of work each week. And, in this way, the FLSA remains today the reason most employers do not require employees to work so many hours. 

To learn more about overtime and your rights to collect overtime pay, feel free to review a newsletter I wrote a few years ago entitled “Overtime Pay: 80% of American Employees are Entitled. Are You?” You can do so by simply [clicking here.]  

4. From what you have written, you are quite probably entitled to payment for overtime for all of those hours worked in excess of 40 in a week. I don’t know all of the facts and circumstances of your position, but it seems to me not to be of an executive nature, an administrative nature, or highly paid, which are the three most common characteristics of an “exempt” position. From how you describe your work and how many hours you generally work, it seems to me quite probable that you are entitled to a large payment of overdue overtime.  

Incidentally, if your employer denies you overtime pay “willfully,” and most instances are easily provable to be “willful,” you may be entitled to double the amount you were denied, plus reimbursement of all legal fees.  

5. The FLSA law makes it illegal to retaliate against those who raise their legal rights to overtime. If you do decide to bring the issue of non-payment of overtime pay due you directly to your current employer, you should bear in mind that your doing so may not make your employer especially “pleased.” In fact, your employer may resent your doing so, and may want to “make life difficult” for you in retaliation.

Though, under the FLSA you are legally protected from retaliation in this situation, we all know that employers can be subtle in how and when they “get even.” For this reason, an anonymous letter to your employer, raising the issue of overtime pay about a group of employees of which you are a member, may be wisest. While some people might view anonymous letters as “sneaky,” I wholeheartedly consider them often totally justified, and a matter of carefully protecting yourself and your family when you stand up for your legal rights.

To assist those who are fearful of directly requesting the legal protections available to them, on our blogsite’s Model Letters section, you can obtain a “Model Anonymous Letter to Your Current Employer Requesting Overtime Pay For All.” To obtain a copy, just [click here.] Delivered by Email – Instantly.

You might also consider filing an anonymous complaint with the U.S. Department of Labor, as it is their job to investigate such complaints and, if they find a violation of FLSA, they will usually try to negotiate a resolution without Court action. For information on how to initiate an anonymous overtime complaint to the Wage and Hour Division of the U.S. Department of Labor, go to their website at www.dol.gov.  

The federal FLSA law provides that you have at least two years, and in some instances, three years, to exert you rights to overtime pay. For this reason, you can wait a while to do so, if you wish.  

On our blogsite’s Model Letters section you can obtain a “Model Letter to Your Former Employer Requesting Unpaid Overtime Pay.” To obtain a copy, just [click here.] Delivered by Email – Instantly.

6. Lastly, always bear in mind that no one can, or will, take care of you at work, or protect you and your workplace rights, better than you can or will, yourself. It is the employee, himself or herself, who can “Just Say No” to an employer’s violation of their legal rights, provided he or she is (a) confident in his or her skills and positive work ethic, (b) prepared in all respects to find a new employer who wants or needs those skills and positive work ethic, and (c) has saved up something of a “financial cushion” in case it takes a while to find what my kids call “a better gig.” 

It is our view that this kind of “wise navigating and negotiating” is, in the end, the smartest, most reliable, most effective, and most rewarding way to live your work life, and that is why we encourage it so much. 

N.R., I hope this has been of help to you. Please – from one hard worker to another – make sure you take the time to take care of yourself, and your loved ones, too.    

My Best,
Al Sklover

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.


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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