The Employee Answer Book: Practical Answers to the Top 250 Questions Every Employee Has

356 Pages·2009·10.89 MB·English

by  Diana Summers

tHe
EmployEE
anSWerBooKtm

Practical answers to the top
250
Questions every employee Has
Diana BroDman SummerS, a ttorney at Law
S p
phinx® ubliShing
An imprint of SourcebookS, inc.®
nAperville, illinoiS
www.SphinxLegal.com
Employee_Answer_Book_FINAL_INT.indd 1 2/24/09 2:21:46 PM
Copyright © 2009 by Diana Brodman Summers
Cover and internal design © 2009 by Sourcebooks, Inc.®
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First Edition: 2009
Published by: Sphinx® Publishing, An Imprint of Sourcebooks, Inc.®
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This publication is designed to provide accurate and authoritative information in regard to the
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From a Declaration of Principles Jointly Adopted by a Committee of the
American Bar Association and a Committee of Publishers and Associations
This product is not a substitute for legal advice.

Disclaimer required by Texas statutes.
Library of Congress Cataloging-in-Publication Data
Summers, Diana Brodman.
The employee answer book : practical answers to the top 250 questions every employee has / by
Diana Brodman Summers.
p. cm.
Includes bibliographical references and index.
1. Employee rights--United States--Miscellanea. 2. Labor contract--United States--Miscellanea.
3. Labor laws and legislation--United States--Miscellanea. I. Title.
KF3455.S86 2009
344.7301--dc22
2009002333
Printed and bound in the United States of America.
VP — 10 9 8 7 6 5 4 3 2 1
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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
They Can’t Do That—The Twenty-Five Myths of
Employment Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Section I: Employment Law Basics
Chapter 1: The Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Chapter 2: Government Employees . . . . . . . . . . . . . . . . . . . 15
Chapter 3: The Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Chapter 4: Attorneys Who Concentrate on
Employment Law . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section II: The Employee-Employer Relationship
Chapter 5: The Hiring Process . . . . . . . . . . . . . . . . . . . . . . . 49
Chapter 6: Actions That Can Affect the
Employer-Employee Relationship . . . . . . . . . . . . . . 57
Chapter 7: Bullying in the Workplace . . . . . . . . . . . . . . . . . 69
Section III: Common Violations of Employment Laws
Chapter 8: Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Chapter 9: Other Employment Issues . . . . . . . . . . . . . . . . . 109
Section IV: Getting Relief
Chapter 10: Filing Complaints . . . . . . . . . . . . . . . . . . . . . . 119
Chapter 11: Going to Trial . . . . . . . . . . . . . . . . . . . . . . . . . 137
Chapter 12: Obtaining Unemployment Benefits . . . . . . . . . 143
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Chapter 13: Workers’ Compensation . . . . . . . . . . . . . . . . . 149
Chapter 14: Family Medical Leave Act . . . . . . . . . . . . . . . 155
Section V: Agreements between the Employer and the Employee
Chapter 15: Noncompete Agreements . . . . . . . . . . . . . . . . 159
Chapter 16: Severance and Settlement Agreements . . . . . . 165
Chapter 17: Mediations, Arbitrations, and Negotiations . . . 177
Section VI: Looking Forward
Chapter 18: Remaining Employed and Preparing for a
Legal Fight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Chapter 19: The Future of Employment Law . . . . . . . . . . 197
Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Appendix A: Where to File Discrimination
Complaints by State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
Appendix B: Department of Labor (DOL), OSHA, and Other
Government Agencies that Employees May Use by State . . . 245
Appendix C: Unemployment Information by State . . . . . . . . . 289
Appendix D: Workers’ Compensation Programs by State . . . . 305
Appendix E: Internet Resources . . . . . . . . . . . . . . . . . . . . . . . . 321
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
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Introduction
The rights of employees have always been an important issue to
me from my very first job when I saw discrimination firsthand, into
my law practice . As many of my former employers will tell you,
even before becoming a licensed attorney, I would eagerly go to bat
for any co-worker who I thought was being treated unfairly by the
bosses . It is with that thirst for fairness and equality at work that I
arrived at the point of being an employment attorney .
I find employment law to be a very interesting field because of the
quirkiness of the laws . Employment laws in most states are very pro-
employer . While it stands to reason that they would be—because
the employer has the money to pay the lobbyists—this tends to
defeat the goal of the law, which is to protect those who are unable
to protect themselves .
Another quirk in some employment laws is a disregard for the prin-
ciples of fairness . Many federal and state statues get bogged down in
the proper form to be used, deadlines to meet, and the minutia of
process, rather than the simple humanity of helping someone . We
spend the majority of each day at work, more time than most of us
spend with our family . During the time we are at work, we may be
bombarded with bosses who are bullies, psychopaths, or just incom-
petent . We do this every day, week after week, year after year, with
few if any vacations . Yet, most of us do not know where to look to
find out what, if any, our legal protections are . That is what this
book is about, providing the reader not only with information but
also with places to find more information in the future .
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vi The Employee Answer Book
One of the many goals of my law practice has been to provide
information to the public about employment law . I believe that if
the employee is armed with the tool of knowledge, he or she will be
much more effective in dealing with an employer when a problem
arises instead of waiting until that problem gets out of hand and
requires legal assistance . To that end I provide free information and
links on my website at: www.lawyer4employees.com . My firm also
invites potential clients to call in for a free phone consultation .
This book is a compendium of the most commonly asked ques-
tions I have received while in practice at my law firm . It is meant
to give an employee answers and solutions to the most commonly
asked questions and situations that an employee will encounter .
It is not a totally comprehensive study of employment law—that
would take several books to cover and would be full of issues that
an employee would probably never encounter . I hope it will answer
some of your questions .
To my readers, keep sending me your questions . You may find
those questions in future books . In the meantime, if you cannot find
an answer to your questions in this book, visit the websites I have
included in the back of this book .
How to Use This Book
This book is divided into several sections . We first begin with the
basics of employment law in Section I . We look at the employee
from the legal sense in Chapter 1 . In Chapter 2, we look at a separate
group of employees—those who work for the government . Chapter
3 gives the reader an overview of the federal laws that protect
employees, information on the federal and state agencies that handle
employee complaints, where to find laws in your state, and how all
the different government and court agencies work together . At the
end of this section, in Chapter 4, we discuss employment attorneys .
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Introduction vii
Section II goes into detail about the employee-employer relation-
ship . Beginning at the hiring process in Chapter 5, we discuss how
employers can violate the law even before hiring a person and how
things employees write on job applications can get them fired years
later . Chapter 6 answers the most common questions about what
your employer can and cannot do . Finally, in Chapter 7 we take on
a new issue in employment law—bullying . Having a bully in the
workplace is an issue that, although going on since the beginning of
time, is just starting to be addressed by both lawmakers and health
care professionals .
Section III discusses violations of current employment laws . We
begin in Chapter 8 with discrimination . In this chapter we look at the
current U .S . Equal Employment Opportunity Commission (EEOC)
discrimination bases, what the employee needs to prove to win in a
discrimination case, and what pitfalls each type of discrimination has
in a legal complaint . Chapter 9 describes several nondiscrimination
employment laws that govern employees . We also include issues for
returning military personnel .
Section IV is all about getting relief for the employee . Chapter 10
goes step by step through how to file complaints with the top four
employee-protection agencies in the United States . In Chapter 11
we discuss taking a case to trial—the problems, the costs, and what
an employee can ask the court for . Chapter 12 explores the issue
of obtaining unemployment benefits . Finally, we end this section in
Chapters 13 and 14 with discussions of workers’ compensation and
the Family and Medical Leave Act (FMLA) .
Section V is all about legal agreements between the employer
and employee, and how to reach these agreements . We begin with
Chapter 15 with a discussion of the very common noncompete
agreement . In Chapter 16 we explain both settlement and severance
agreements, including what the employee needs to look for in both .
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viii The Employee Answer Book
Finally, Chapter 17 goes over the mediation, arbitration, and nego-
tiation that potentially go into arriving at a fair agreement .
Section VI is about looking to the future . In Chapter 18 we
provide hints on staying employed and how to fight with your
employer without being terminated . In the final chapter, we look at
where employment law is heading .
When reading this book, please keep a few important things
in mind:
• Each state has its own set of laws that affect the employer-
employee relationship .
• The best way to find your state’s specific laws is by visiting your
state’s website .
• You can do your own research on local and federal laws, but
you may find it much easier to speak with a local employment
attorney who can review your specific case as it relates to the
relevant laws .
• It is impossible for one book to contain all the variations that
affect employees in the United States .
Disclaimer: Nothing in this book implies or should be construed as
creating an attorney-client relationship between the reader and the
author, Sourcebooks, or any agent thereof.
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