Dear David

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How To Celebrate National Boss’s Day

There seems to be a holiday for everything, even when it’s not totally necessary. Take, for instance, National Boss’s Day, which took place on Wednesday. Boss’s Day, inaugurated in 1958, is “a day for employees to thank their bosses for being kind and fair throughout the year.” Kind and fair is good, but what does that really mean? Where is the bar set, and who gets to set it? If your boss is personally very nice to you but neglects to hear you on issues that are important to you or your co-workers—is that good enough? And what if your boss isn’t kind or fair?

There are, of course, great bosses out there—people who truly treat the employees who work for them with respect and fairness, and strive to make the workplace healthy and productive for everyone. But I know from this column that there are plenty of workers out there for whom “National Boss’s Day” just adds insult to injury.

Like this man, whose boss has told him to “improve” his work but hasn’t said what that actually means.

Or this woman, whose boss is condescending to her and insults her with names like “fathead.”

(If you want a quick survey of how bad bosses can really be—check out these stories.)

For workers like these, whose ability to make a living is at the mercy of someone who abuses their power, every day is “Boss’s Day” and not their own.

The good news is that it doesn’t have to be this way. You don’t have to cross your fingers and hope for a boss to decide to be kind to you. If you work strategically and act together with your co-workers, you can begin to reset the imbalance in the boss-worker power dynamic that too often leads to bad situations. There’s some effort involved here, for sure, but that’s true about anything that’s worth doing.

Here’s my challenge to anyone dealing with a bad boss right now:

1. Step back and ask yourself some questions. What would you like to see changed at your workplace or in the way your boss treats you? Who else do you know at work who is feeling the same way as you?

2. Take the Working America “Fix My Job” challenge. Give yourself a year to experiment with the tools on fixmyjob.com, and see what you can accomplish by working together with your co-workers.

3. Keep us posted. You can do this through fixmyjob.com, where you can keep notes, ask us questions and share your progress privately. Once you’ve completed some basic first steps, you’ll have an opportunity to request a meeting with an experienced workplace troubleshooter.

I know it can be disheartening if you are dealing with a bad boss right now. Stay strong! Remember to be patient. Meaningful change doesn’t happen on its own, and it doesn’t happen overnight. But you—together with your co-workers—CAN make change happen.

Got a question for David? Submit it here.

Filed under bad boss dear david rights at work 1u p2 atwork labor union fixmyjobs fixmyjob

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Fired At Will?

Question:

How can we get rid of the “at-will employee” law, in Colorado or any other state? What would be the first step to take in that process?

— At-Will Employee, Colorado

Answer:

First, a quick primer: “At-will” employment means that you work at the pleasure of your management, and they can fire you—you guessed it!—at will. It’s a frustrating situation, but one a lot of employees find themselves in.

One way workers can deal with at-will laws is by having a union. Most unions include “just cause” as a stipulation in the collective bargaining agreement negotiated with their employer—it means that your boss needs to show an actual cause to fire you.

The Colorado Department of Labor and Employment website provides a handy summary of at-will employment and the common exceptions to at-will employment. Colorado is pretty typical in terms of its at-will employment laws: At-will employment is the default for private employees in all states. Some of the exceptions to at-will employment, like federal anti-discrimination laws andconstitutional due process protections for public employees, apply in every state, and in any state employees are able to contract—either individually or collectively—for the right to continued employment unless there is just cause for termination. While the at-will employment rules are generally similar throughout the country, there is some variation from state to state. This could be because the state’s legislature has created additional exceptions (for instance, while federal law does not ban firing employees based on sexual orientation, several state laws do) or because the state’s courts are more likely to find implied contracts or covenants that impose a higher burden on when employers can terminate an employee.

But I like the way you’re thinking here—bigger than just your own job. In Colorado, you’d have two paths to changing employment law. One would be to pass legislation through both houses and get the governor to sign it. Or you could try to do it through a ballot initiative.

That’s not exactly a walk in the park, though. In order to get that kind of change legislatively, you’d need to build a stong grassroots movement.

The way to start—whether it’s in your workplace or at the state level—is by having a few conversations with people you know. Chances are, most people don’t even know what “at will” means, so you have a chance to educate them. Once they understand what “at will” is and that there are alternatives to aspire to, they might just be fired up enough to help you reach others. That’s how a movement starts.

Got a question for David? Submit it here.

Filed under dear david Working America colorado at will atwork 1u p2 organizing social justics rights at work workplace workplace advice

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Temping Fate?

Question:

I work for a staffing company, and I’m based in a manufacturing plant. The host company whose plant I work in is a global giant, and we “temps” are paid $10.00-$10.50 per hour, compared to the $13.00-$15.00 per hour the company’s regular employees are making. Temps only get three excused personal days per year, and one week’s paid vacation after one year of employment. No uniforms, no 401k, and no insurance besides a “mini plan,” whatever that is. Many of us were recently laid off, and the remaining workers on my shift are being asked to work two stations now, even as our pay remains the same. This place is in dire need of a labor union but, according to regular employees, the threat to close the plant if workers organize is real. How can organizing take place without putting the jobs of others at risk? This practice of hiring through staffing companies is terrible for workers.

— Fed Up Temp, NC


Answer:

This is definitely a growing problem for our economy. According to recent studies, temp work has grown immensely in the past few years—rising to “nearly 17 million people who have only tenuous ties to the companies that pay them—about 12 percent of everyone with a job.” This saves the companies money and makes them less connected to any particular worker, with consequences for pay and benefits like the ones you’re seeing. When you’re not connected to the company at which you’re working, you have less power to fight things like increased workloads. So what can you do?

It’s a complicated situation. Under National Labor Relations Board (NLRB) case law, true temporary workers are not eligible to participate in union elections. Of course, not everyone who is called a temporary worker by his or her employer is in fact a temporary worker, and the definition of “temporary worker” used by the NLRB is narrower than what we commonly think of when we think of a “temp.” For the purpose of union elections, a temporary worker is one who is employed for one job only, or for a set duration, or who is notified that he or she has no substantial expectation of continued employment. An employee whose tenure is indefinite is not considered temporary. The NLRB looks to the facts of each situation to determine whether someone is genuinely a temporary worker, regardless of what the employer chooses to call that worker.

A related question is whether workers provided by a staffing agency are considered to be employed by the staffing agency, by the “user” employer (the employer for whom they actually perform work), or jointly by the staffing agency and the user employer. Again, this is a case-by-case answer that depends on the control that the user employer exercises over the labor relations of the staffing agency. Even if the user employer is considered to be a joint employer with the staffing agency, the employees supplied by the staffing agency are not eligible to be included in the same bargaining unit and vote in elections along with the user employer’s direct employees—unless both the user employer and the staffing agency agree (good luck with that one!).

Another legal issue in your case is about the threats to close the plant if workers vote for a union. The Supreme Court has ruled that an employer can only tell employees that it will close a plant if workers unionize if “the eventuality of closing is capable of proof,” a circumstance the Court recognized as being “most improbable.” Therefore, in most cases it is a violation of workers’ right to organize for an employer to state or imply that a plant will close if the workers vote to form a union.

One important note is that even if someone is a true temporary employee and not eligible to vote in a union election, he or she is still protected by the NLRA, meaning that the employer cannot retaliate against that worker for engaging in protected concerted activity.

There are, however, some ways you can move toward fairer conditions. You could try to find a few people you trust on both the staffing agency side and the regular employee side. Together, you could compare notes about pay, hours and working conditions, and if you can identify some big issues you have in common, you can confront your employer about it directly. You could also try taking your case to your community, to create public pressure for your employer to raise standards.

Don’t be discouraged—you’re not alone in facing this problem, and talking to your co-workers about it is the first step.

Got more questions? Email our organizer Sherry Wright at swright@workingamerica.org

Filed under 1u p2 labor union at work atwork politics temp work minimum wage nc north carolina

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Hydration Frustration

Question:

I work at a hospital as an office clerk. We currently have an interim director. There are many changes happening in our department, which has been stressful, but I’ve been “rolling with the punches.” Last week our director had a meeting in which he stated that we are not allowed to have water to drink at our check-in reception area per hospital policy. This has never been a rule in the past. While this probably would not be an issue normally, I take certain medications that require me to drink plenty of water. I went to see my doctor and got a note saying that I could have water at my desk. Now I’m worried that if I give my director the note, I will be on his “bad side” or be labeled a troublemaker. What should I do?

— Not a Camel, Iowa

Answer:

Under the Occupational Safety and Health Act (OSHA), all workplaces must provide drinkable water to employees, but that doesn’t mean that workers have a right to drink water at their desk.

While requirements for breaks while working to eat lunch, use the restroom, etc. vary state by state—from “no breaks for you” (which, unfortunately, is the case in Iowa) to minimum standards such as a 30-minute meal break and paid rest periods in some states—your health condition could offer you additional protection. Your health condition may be serious enough to be considered a disability under the Americans with Disabilities Act (ADA), and if so, your employer may be required to provide you with a reasonable accommodation to allow you to perform your job. Health conditions that constitute a “disability” under the ADA and the type of accommodations that are “reasonable” are determined on a case-by-case basis, but more information can be found here.

Even with protections in place for individuals who have health conditions, you’re smart to consider how your employer will react to you. The first thing to consider is whether to involve another co-worker. Is there anyone else with similar needs or concerns about access to drinking water, breaks or the like? If so, try to meet with him or her first and see if he or she will agree to go with you when you talk with your boss. A larger group would be even better. That way, it’s not just about you, but about the quality of everyone’s workplace. Not only are you less likely to be singled out, but the law provides additional protections from retaliation when two or more employees join together. This is called “protected concerted activity.”

Still, your approach matters. With another co-worker or in a group, strike a collaborative tone when speaking to your director. You could say that you understand what the rule is, but that a couple of you—or many of you—feel like the workplace would be better for everyone if you knew that when it was necessary, as in your situation, you could expect some flexibility to go to the water fountain, break area or restroom to take medication or address personal needs.

Getting together with your co-workers isn’t just about protecting yourself from retaliation. It’s also how you can shape your workplace to be happier and healthier for everyone who works there. I’m for raising the bar for everyone. Don’t you think we should set our sights higher than just meeting the minimum standards of the ADA?

Got a workplace question for David? Ask it here.

Filed under dear david working america iowa atwork workplace hydration osha safety 1u p2 union labor disability

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The Mean Kids

Question:

Dear David, I work with a group of people who bully other co-workers. They spread false rumors, try to sabotage others’ jobs and call our ethics tip line to get others in trouble. What would be your advice in dealing with the wackos?

— Pushed Around in Pennsylvania

Answer:
That sounds like one part “The Office,” one part “Lord of the Flies.”

This would be annoying in a middle school—but in an adult workplace, it’s incredibly embarrassing and totally unacceptable. One question: Where’s your boss in all this? It’s not just you and your co-workers’ responsibility to maintain standards of behavior at the workplace, but your employer’s, too.

Whenever you have a problem at work, often it’s a good idea to talk to others you work with to see if they share your concerns. Together, you gain some protection as well as partners to help you problem solve and organize others. However, you do have to be careful in this environment.

It’s usually not a very good idea to confront someone at work—whether it’s your boss or a co-worker bully—by yourself. It’s called “strength in numbers.” The first question I’d ask: Is there anyone else at your workplace who’s not a part of this group of “wackos,” so you can get some backup if it comes down to it? If so, I would probably start there.

Because you know there’s a risk of false rumors and sabotage, you may want to minimize your appeal as a target by only engaging with the bullies as necessary to do your job. Think about getting a locking file cabinet and a password on your computer if you don’t already have one. And, although it’s one of the easiest things to do, it’s also one of the most easily overlooked: Cover yourself! Document, document, document. It’s smart to keep good records of what’s going on, including times, dates and the names of anyone who was involved or witnessed. You could start a workplace journal, or you could email notes to yourself or another trusted co-worker. Just don’t leave your journal out at work, and use your personal email account, not a work email.

Protecting yourself, keeping a record and figuring out who your trusted allies are is the key here. That’s a good start on the path to organizing and getting your boss to take some meaningful action.

Filed under at work rights at work workplace pa pennsylvania theoffice lord of the flies

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Dear David: Underpaid for Overtime

Question:

Hi, David. I work for a home health care franchise that enables seniors to continue living at home. I’ve been told that since my employers have a “temporary part-time” tax status, they do not have to pay overtime. I work 12 hours daily at least five days a week. Sometimes we have to pick up shifts when other staff “no-show, no-call.” We work in two-week pay periods 120-140 hours and do not get any overtime. We only make $9 per hour. I eagerly await your instructions concerning this matter. Thanks in advance.

— Underpaid for Overtime, Ohio

Answer:

Caring for seniors is important work, but it can also be challenging—especially when you’re at it for 12 hours a day! That sounds truly exhausting, and I’m sure it’s especially frustrating when you feel like you’re not getting paid what you deserve.

As I’m sure you know, $9 an hour isn’t a ton of money. It’s more than minimum wage, but if minimum wage had kept up with the cost of living over the past 40 years, it would be $10.52. You’re doing important work, and $9 an hour is tough to support yourself—or your family—on.

It’s not just the pay scale that’s tough to stomach here. You shouldn’t have to rely on working 60-70 hours per week because your employer doesn’t pay you enough, and you really shouldn’t be forced into working 60-70 hours because your employer is apparently unwilling to staff up properly. You’re right to question the status quo.

I’m not really sure what your employer means by “temporary part-time tax status” and how it would affect overtime. It might be good just to note that, although there are several types of exemptions, the Fair Labor Standards Act overtime requirement applies to most workers, and you’ll probably want to look a little deeper into whether you are covered rather than just taking the employer’s word for it. (If you think you need professional legal advice on this question, one of the benefits of being a member of Working America is access to a free 30-minute consultation with an attorney. You can learn more here.)

Let’s take another approach to this, though. Let’s say that your employer does have some kind of exemption to overtime. That doesn’t mean you have to take it or leave it—you could take a page from other home care workers in a similar situation. I’m sure you’re not alone in being fed up, so one of your options is to get together with your co-workers and strategize ways you can get your employer to meet your interests. If enough of you share the same concerns and are fed up with low pay, long hours, short staffing or anything else—it may be time to get organized. You’ll have a lot more strength acting together than individually. You can start here: use FixMyJob.com to diagnose the problem and OrganizeWith.Us to make a plan.

Filed under 1u p2 labor union workplace dear david working america

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Train in Vain?

Question:

At the company I work for, employees are expected to attend training, usually four hours per day, Monday to Friday, for 30 days (without pay). Once training is completed, they may or may not get a chance to work, because the company has brought on so many people that most of the time only 10 percent can be on the schedule at one time. There are over 3,000 of us with the same job title working for this company all over the country. So many people are getting taken advantage of every day by this company. I know at least 90 percent of us feel the same way. A lawsuit has already been started, but I feel we need to organize and create a union to stop the abuses and manipulation of this company in its tracks. Where do I go from here?

— One in 3,000, Georgia

Answer:

Five days a week, four hours a day, for a month? That’s a huge investment of your time, especially when the odds are that it won’t pay off. What an incredibly disrespectful way to treat people who want to work for you.

While there are certainly times when seeking a legal solution is the right way to go, many workplace problems can’t be resolved that way. So it’s good that you are already thinking about another way to address your situation. Organizing with your coworkers, as you seem to understand already, is a smart way to hedge your bets.

Determining whether an individual must be paid for “training” turns on whether the training is for the benefit of the individual or the employee, whether the individual is doing work that otherwise would be done by an employee, and other factors. While the way these workers are being treated sounds terribly unfair, unless there is a contract in place and/or the employer made guarantees based on completion of training, an employer has no obligation to schedule employees for any minimum number of hours, or at all. However, even if this is bona fide training under the standards put out by the Department of Labor, the workers should look to consumer protection laws – such as laws against false or deceptive advertising – to see if this employer’s practices run afoul of the law.

There is a silver lining to the situation you’ve described. If 90 percent of you are feeling the same way about what needs to be changed, you’ve got fertile ground for organizing. Not sure where to start? That’s why we put together FixMyJob.com and OrganizeWith.Us. Check it out, and follow the steps together.

Filed under 1u p2 labor union organizing wages fair wages rights at work training atwork workplace fixmyjobs dear david Working America georgia

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Overtime, Over State Lines?

Question:

My son works part-time at a shipping/receiving business. He was hired by an outside trucking company to work there. His co-workers who are actual employees of the shipping/receiving business are full-time. They are told that they cannot receive time-and-a-half for overtime because the company is from Tennessee and the contract (not a union contract) was signed under Tennessee rules. The company is in Georgia. (My son is not affected because he is hired from the outside and only gets about 32 hours at most per week.) I’ve never heard of this before. Is that true, or is the employer ripping them off?

— Concerned Parent, Georgia

Answer:

That’s a novel excuse, but not a very good one.

Whether or not Georgia law applies, the vast majority of workers in the United States are covered by the federal wage and hour law, the Fair Labor Standards Act. States can provide stronger protections for workers – such as a higher minimum wage – but they cannot prevent federal law from applying to workers in their state covered by the Fair Labor Standards Act. Also, workers cannot give uptheir right to overtime pay under the Fair Labor Standards Act through the terms of their employment contract. As for the state laws, as a general rule states apply their wage and hour laws to any employee working in that state, regardless of where the employer is based.

Here’s something else about overtime that will probably interest you. There’s been a move recently in the U.S. House of Representatives to change overtime laws—purportedly to give workers more “flexibility” by offering comp time in lieu of overtime. Guess what—all the “flexibility” goes to the employer, and ultimately what it would amount to is an interest-free loan from you to your boss. The really insulting thing is how these congressional Republicans argue that trading real overtime pay for hours your managers might let you use at their convenience is somehow pro-worker. (Here’s a great video that explains everything you need to understand about the inaptly named Working Families Flexibility Act.)

It’s not going anywhere right now—President Obama has said that he would veto the bill if it makes it to his desk—but watch out for it. This is another example of a power grab by employers who have too much power over workers already. Think it’s time to start leveling the playing field? You might want to point your son here.

Filed under 1u p2 georgia workplace organizing

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My father at the age of 32 fell 30 feet from a defective scaffold to his death on a concrete floor. Workers Compensation ruled out that kind of scaffold after his death.

There’s something so sad about a person going to work and not coming home. We went to meet his train, he wasn’t on it so we went to meet the later train, he wasn’t on that one either.

Agathena on DailyKos (via workingamerica)

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If We Took a Holiday

Question:

I have been an employee at a private nursing home for 24 years. I now work part-time for five days in a two-week period, 7.5 hours per day. When my scheduled day to work falls on a holiday, I do not get paid for that day. Therefore I lose a day’s work and only get four days in that pay period. Why must I lose a day’s work because it is a holiday? It just does not seem fair to me.

— Expensive Holiday, Ohio

Answer:

This is a pretty important issue—after all, you rely on having that consistent income, and getting a day without pay thrown at you is a big deal.

This is one of the problems with employers having all the say on what’s considered “fair.” Unless you have a contract or union agreement that says otherwise, it is probably legal. But “legal” doesn’t mean “fair.” While the federal government and most public employers recognize certain holidays and provide either paid time off or premium pay for their employers on those days, there is almost nothing required by statute for private sector employees with respect to holidays. Federal wage and hour law and the vast majority of state laws do not require private sector employers to treat holidays any differently than any other days. Unless you have an individual or union contract guaranteeing you a certain number of hours per week, or specifically requiring paid time off for holidays, you can be scheduled off without pay. Also, except in a small number of states (such as Massachusetts and Rhode Island), private sector employees are not entitled by statute to extra pay if they are required to work on a holiday.

So who gets to decide if you are going to be paid for a holiday, and who gets to decide what your schedule looks like? It’s not clear if you are working this schedule because it’s your preference or because that’s the only schedule your employer will offer you despite your long service.

Sometimes employers hold back holiday pay or other benefits as an incentive for working full-time or a certain number of hours. And too often employers are manipulating workers’ schedules so they don’t work enough hours to be eligible for those kinds of benefits. Even if that’s not what’s happening here, don’t you think 24 years working at the same place ought to come with some input into your working conditions? That might be a good question for you to take to some of your co-workers. While you’re at it, you might want to ask them if there’s anything else about their jobs they’d like to see get fixed. If enough of you end up on the same page, this might become an opportunity for you to address several issues at once—together.

Filed under 1u p2 labor union Working America ohio oh ma massachusetts ri rhode island paid sick days paid sick leave fair wages