Newsday (New York), May 1, 2005, Sunday

Copyright 2005 Newsday, Inc.
Newsday (New York)

May 1, 2005 Sunday
NASSAU AND SUFFOLK EDITION

SECTION: MONEY & CAREERS; Pg. A56


HEADLINE: A close look at workers' rights;
Think you're entitled to benefits, or to see your personnel file, or to severance pay? Think again

BYLINE: BY CARRIE MASON-DRAFFEN. STAFF WRITER

BODY:
"What are my rights?" It's a question that state and federal labor departments receive every day from workers unsure of their company's employment practices. The New York State Department of Labor received about 166,000 such calls last year, up from 154,000 the year before.
Most workers in this state, as in many other parts of the country, are considered "at-will" employees, meaning they aren't covered by a contract. So companies have a wide berth in establishing their own workplace practices, which could include setting vacation terms or firing employees without having to give a reason.
Because so many aspects of workplace policies are unregulated, employees often find them confusing, particularly when the rules work against them.
Some independent contractors often experience downright shock when they find out they have no protection under state or federal labor laws. Many of them worked in corporations and transitioned to independent contractor after a layoff and assumed some labor law protections followed. They have to work out disputes with the companies that retain them or resort to the courts.
To help familiarize workers with labor laws, Newsday offers a look at some of the most wide-ranging sections of state and federal labor law.
You're Hired. Now What?
Minimum wage: New York State's minimum wage, which rose to $6 on Jan. 1, now eclipses the federal minimum of $5.15 an hour. So with few exceptions, New Yorkers have to earn at least the state minimum of $6 an hour. The latest hike increased the pay of about 2.9 percent of workers in New York State, about 232,000 people, according to the Economic Policy Institute in Washington.
The state rate will continue to rise in stages until it hits $7.15 an hour in 2007.
You're exempt from minimum wage if you fall into the administrative, executive, professional and outside-sales categories. Employers always have the option of paying more than the minimum, and many must in order to attract talented employees, especially in high-wage areas like New York.
Benefits: By law, your company doesn't have to provide you any benefits. In fact, just 61 percent of workers nationwide receive health-care coverage from their employers, according to the Kaiser Family Foundation.
Though benefits aren't mandated, New York State goes after employers who renege on promised perks, which also include sick leave, vacation, personal leave and holidays. The state labor department requires companies to either give employees a copy of the written guidelines or to post them in the workplace.
Hours of work: Are you wondering if your grueling 70-hour work week is legal? It most likely is. With few exceptions, state and federal laws don't restrict the weekly hours of employees 18 and older. The few groups whose weekly hours are capped include railroad workers, airline pilots and truck and bus drivers.
As increased productivity rates attest, Americans are working longer hours because of employers' reluctance to hire. The silver lining for hourly workers is that they have to be paid for all the hours they work. However, they may be too tired to enjoy the extra income.
Overtime: By law, overtime pay kicks in after 40 hours in a week. It's not based on how many extra hours you work a day but whether you accumulate more than 40 hours a week. Workers eligible for overtime earn rates of either 1 1/2 times their regular hourly wage under federal guidelines or 1 1/2 times New York State's minimum wage, depending on how labor law classifies their jobs.
Breaks: In New York you have the right to a meal break of at least a half hour if you work more than six hours a day. The lunch hour is unpaid unless you're an hourly employee who works through lunch.
As for other breaks, your company doesn't have to provide them unless a contract says so. Still many companies provide short breaks because it's customary and because the extra breaks just make sense, some experts say.
"Actually having people work all the time is not the most productive strategy," said Bradford Bell, an assistant professor of human-resource studies at Cornell University's School of Industrial and Labor Relations. "We know that breaks are important for keeping people ... at their maximum performance level."
Discrimination: No company has the right to refuse you a job, promotion or any other privilege because of your race, color, gender, religion, natural origin, age or disability. Since 2003, New York State also has banned discrimination on the basis of sexual orientation.
In March, older workers received a boost when the U.S. Supreme Court made it easier for workers older than 40 to sue their employer under the Age Discrimination in Employment Act. According to that ruling, even if an employer's policy isn't intentionally biased but has the effect of discriminating, employees can sue.
You also have a right not to be sexually harassed at work. It's against the law, and companies who ignore an employee's complaint can be held liable.
Personnel files: Private-sector employers in New York, as in many other states, can legally refuse to show employees their personnel files. On the other hand, some states give employees the right not only to review their files but to challenge the contents as well.
Even though New York isn't one of them, "obtaining your personnel file may be as easy as simply requesting the file from your employer," said Manhattan employment-rights lawyer Alan Sklover, the author of "Fired, Downsized or Laid Off: "What Your Employer Doesn't Want You to Know About How to Fight Back."
Off Duty: What Are You Entitled To?
Family and Medical Leave Act: This 1993 federal law allows eligible employees at companies with at least 50 workers to take up to 12 unpaid weeks off to care for a newborn or themselves or a family member battling a serious illness. The employees can take the leave all at once or intermittently, such as daily or hourly. Since the law was enacted, more than 50 million workers have taken family or medical leaves, according to the U.S. Labor Department, which enforces the FMLA. The majority, about 52 percent of them, did so to recuperate from a serious illness.
Disability and Workers' Compensation: Even if you are unable to work because you suffered an off-the-job injury, you may be eligible for disability benefits through a program paid for by employers and employees and administered by the state.
The benefits generally run for a maximum of 26 weeks in a 52-week period, with a maximum payment of $170 a week. Moms-to-be can file for disability benefits if they become disabled because of pregnancy. If your claim is rejected, you can ask the state Workers' Compensation Board for a hearing.
Employees injured on the job may qualify for workers' compensation if the injury didn't result from their own negligence. Injured workers receive two-thirds of their average weekly salary, up to a maximum of $400.
Safety Is an Issue
OSHA: You have a right to a safe workplace, and if you think your workplace is unsafe, then the U.S. Occupational Safety and Health Administration wants to hear from you. OSHA requires employers to maintain a workplace free of hazards that could cause serious injury or death. The requirements include providing safety training and informing employees about the presence of hazardous chemicals.
Employers face financial penalties or imprisonment if a deliberate violation causes an employee's death.
Fired? You Still Have Rights
Firing: In an at-will state like New York, you can be fired at any time unless you are covered by a contract. But the at-will doctrine also holds that you can quit at any time as well. It is customary, though, for both employees and employers to give two weeks' notice.
Some companies concerned about security will ask an employee who gives notice to leave immediately. That's unfortunate but legal.
New York has three exceptions to at-will firings. A company can't use the firing to discriminate. The employer can't legally fire employees to retaliate against them for filing a complaint with the State Labor Department. And lastly, the company can't boot workers for legally partaking of "consumable products" such as alcohol and tobacco during their off hours, or for involvement in political or union activities.
Layoffs: If your company has at least 100 employees, a mass layoff could trigger the Worker Adjustment and Retraining Notification Act (WARN), which requires a 60-day notice to workers. A mass layoff is defined as a third of the workforce, or 500 employees overall, or at least 50 employees at a single site. As an option, WARN permits companies to lay off employees without notice if they give them 60 days' pay. Some companies might be exempt from WARN if the layoffs are tied to unforeseen circumstances such as a business downturn or a natural disaster.
Severance pay: Three big myths surround this largely unregulated workplace issue.
Myth No. 1: Laid-off employees are entitled to severance pay. Neither federal nor state laws mandate severance payments, but the practice is so widespread that many employees believe they're entitled.
Myth No. 2: Companies offer them with no strings attached.
"If you are being offered a severance agreement, the employer is also seeking something from you - a release of any claims you may have against the company," Sklover, the lawyer-author, said.
Myth No. 3: Severance pacts aren't negotiable.
"Being offered severance and striking a deal you can live with is a survivable process," Sklover said. Though severance is largely unregulated, the State Labor Department will go after companies that promise severance but fail to deliver.
Unemployment benefits: If you lose your job through no fault of your own, you probably qualify for unemployment benefits, which are capped by the state at $405 a week for a total of 26 weeks in a year. In rare instances you can quit and qualify for benefits, but you have to prove "constructive discharge" - for example, if circumstances became intolerable because of discrimination. Your company has a right to contest your claim, but you also have a right to appeal a decision if you are turned down.
Noncompetition agreements: Once you leave your company you may face restrictions on where you land next if you signed a noncompetition agreement.
These agreements, whose terms the courts have tended to limit, typically include geographic and time restrictions on where you can work.
"A broad noncompetition agreement cannot only limit your future but harm your ability to return to the only industry you have worked in," said Sklover. "If at all possible, avoid signing a noncompete agreement in any form."
If you must sign, Sklover said, you should limit both the duration and the geographic reach of the agreement. A three-month restriction is better than a year, he said; so, too, a narrow geographical area that is off-limits is better than "the entire world."
Winding Down: Retirement
401(k)s: If you contribute to a 401(k) through direct payment or payroll deduction, your company must deposit those contributions within a federally mandated time frame. That company or its plan administrator must credit the money to your account no later than the 15th business day of the month following the month in which the employer received the contributions, said Victoria Quesada, a pension-rights attorney at Quesada & Moore in West Hempstead.
So contributions received in, say, May have to be credited by the 15th business day of June.
Violations should be reported to the Department of Labor. Employers who violate this provision of pension law have to pay interest on the delinquent deposits.
When an employee becomes eligible to receive pension payments, the company has until the 60th day after its plan year closes to begin providing payments, Quesada said.
Pension benefits: Pensions aren't required by law, but if your company offers one, then think "vesting," that irrevocable right to a pension that you earn after a specified number of years on the job. Although you earn retirement benefits while participating in a plan, you won't be entitled to the benefits unless you are vested, Quesada said.
Current federal pension laws allow two vesting schedules of five and seven years. Employees become 100 percent vested at the end of one term or the other.
"Once you have satisfied this vesting schedule, you have a legal right to your accrued benefit under the plan, even if you leave your job before retirement age," Quesada said.
Plans may not exclude employees simply because they are part-time or seasonal, Quesada said. If they have a year of service, which the U.S. Labor Department defines as 1,000 hours, those employees have to be included in the pension plan.
Where to get more answers and help
U.S. Labor Department: Among other things, this agency enforces laws regarding minimum wage, overtime and the federal Family and Medical Leave Act. Call 516-338-1890 or 212-264-8185.
New York State Department of Labor: This agency administers many laws similar to those administered by its federal counterpart, including those covering minimum wage and overtime. It also enforces laws regarding meal breaks and promised benefits. Call 516-794-8195 or 212-352-6700.
The state labor department's unemployment-insurance Telephone Claims Center: 888-209-8124.
The U.S. Labor Department's Employment and Training Administration: Enforces the WARN act, which is triggered by mass layoffs. Call 877-872-5627.
U.S. Occupational Safety and Health Administration: Oversees worker health and safety. Call 516-334-3344, 718-279-9060 or 212-620-3200.
U.S. Equal Employment Opportunity Commission: Enforces federal laws banning discrimation on the basis of race, gender, religion, national origin, color, age and disability.
Call 212-336-3620. The New York Division of Human Rights administers similar laws.
Call 718-741-8400. Both work with county human-rights agencies.
The state Workers' Compensation Board handles disability and workers' compensation issues. Call the advocate for injured workers at 800-580-6665.