New York Employment Lawyer Blog

Most people think that they have a right to their job and that they also have a right to be treated fairly.  But they don't have either.  America is built on the harsh reality of the employment at will doctrine.   This means that employees have no right to their job and no right to be treated fairly.   They can be fired at any time, for any reason or no reason at all.  No advance warning is required.  It sounds cold and brutal and it is.

At my law firm, I speak to people everyday who are upset because they were just fired for unfair reasons.  They are angry and they want to take action.  They want to sue.  But then I ruin their day by telling them that they really cannot do anything because their firing was legal.   It might have been morally wrong and unfair, but it is perfectly legal so there is nothing they can do but get over it and move on.

Some of the callers can prove that they were fired for false reasons.  They have rock solid evidence that they were not late, or that they are not responsible for the error etc.... but it does not matter.   An employer is free to fire an employee for the wrong reason.

It is clear that the employment at will doctrine is widely misunderstood.   Most people who call us really are shocked to hear about it.   I think that people just cannot believe that the law is so harsh.   People believe that some rule of fairness applies.

Because everyone works and everyone is subject to this harsh rule, you would think that people would know about this rule.  I think it should be taught in school.   People need to know about this rule because it governs their working lives.   At school, I learned all about math, geography, physics, science, grammar and more, but no one ever told me about the employment at will rule.  I wish they had.

I was fired once for a very unfair reason.  I was working as a cook at a restaurant and I dropped a stack of plates that I was carrying.  It was not my fault because someone bumped into me, but I got fired for it.   I was really upset about it because it was so unfair.  I was just a college kid at the time so I just got another job, but I had no idea that the manager was within his rights to fire me like that.

Those who understand the employment at will doctrine are at an advantage.   If people know that fairness does not matter, then people will not expect it and will govern their actions accordingly.   If you know that you can be fired at any time and for any reason, then there is only one thing that will give a person a semblance of job security and that is outstanding job performance.   If a person is a great worker who truly helps the company, then the company is more likely to protect that employee.   In my view, employees should stop worrying about fairness and notice and their rights because that is all an illusion - instead they should concentrate on delivering outstanding job  performance because that is what matters.

Employees do have some rights.  They have the right to overtime pay, to family or medical leave, they have the right to work in an environment free of sexual or racial harassment and employment discrimination based of race, sex, age, religion, disability etc. is prohibited.

Whoever is in charge of developing the curriculum for high schools ought to give some thought to teaching kids about the basics of working life.  While it may be important to know that Quito is the capital of Ecuador, it would be more useful for people to know the basic rules that govern their working lives.

Have you ever heard that you should not leave a job until you have another one?   That has never been more true than now with so many unemployed and worse, companies are now refusing to consider unemployed people for jobs.

As reported in a recent Time.com article, companies across the nation are simply refusing to consider unemployed job applicants.   Some job postings actually come right out and say it.   One online job listing said, "No unemployed candidates will be considered at all."   Companies argue that unemployed people are not as qualified as those with jobs.

So the question is - is it legal for companies to discriminate against the unemployed?   The short answer is YES, it is legal for companies to discriminate against the unemployed, unless it happens in New Jersey.

The federal employment laws only prohibit discrimination on the basis of race, sex, religion, age, disability, and arguably sexual orientation.  But being unemployed is a not covered.   It is perfectly legal for companies to discriminate against the unemployed.  So now millions of otherwise qualified job applicants are being excluded solely because they are unemployed.  It is unfair but its not illegal.

New Jersey is leading the way in protecting its unemployed and in March it enacted a law that makes it illegal for employers to make current employment a requirement for job applicants.

In Congress, a representative from Georgia has introduced a law that would prohibit employers from counting out the unemployed - but that has little chance of becoming law with the current Republican Congress.

The only way to protect the unemployed is for the States to enact their own laws.   Congress will never do it.   Other States need to follow New Jersey on this one and protect their unemployed.

Overtime pay scams are common but the Courts do catch on.   Recently the Second Circuit Court of Appeals acknowledged that time sheet fraud does occur.

Overtime Pay Time Sheet Fraud

Time sheet fraud occurs whenever a company intentionally excludes overtime hours from their time sheets.

One popular technique is to create a Catch-22 situation for employees.    Companies do this by creating two conflicting time sheet policies.   First the company issues a written policy that requires accurate time sheets.  Something like "all hours, including overtime hours, must be recorded on time sheets." This way it looks like the company is trying to keep accurate records.   However, in practice the company follows a different policy.   Employees are told verbally by their supervisors not to record any overtime hours on their time sheets.   So the employees do not record their overtime hours.

When an employees later claims that they were not paid overtime, the company then blames the employee for not keeping accurate records and accuses the employee of making up bogus overtime hours.   The company produces its written policy as proof of its time keeping practices and the employee has no record of their overtime hours.   It can make it tough for employees to recover their overtime pay.

But the Second Circuit Court of Appeals recently recognized this trick in Kuebel v. Black & Decker, decided on May 5, 2011.  Here is what the court said:

"At least where the employee’s falsifications were carried out at the instruction of the employer or the employer’s agents, the employer cannot be exonerated by the fact that the employee physically entered the erroneous hours into the timesheets. As the district court emphasized, Kuebel admits that it was he who falsified his timesheets, notwithstanding [the Companies] official policy requiring accurate recordkeeping. But his testimony — which must be credited at the summary judgement stage — was that he did so because his managers instructed him not to record more than forty hours per week. He specifically testified that at company meetings and during discussions with one of his supervisors, it was conveyed to him that he was not to record overtime no matter how many hours he actually worked. In other words, Kuebel has testified that it was B&D, through its managers, that caused the inaccuracies in his timesheets."

It is good to see that Court's recognize this.   The Second Circuit Court of Appeals is usually very good.   Many courts, however, seem to live in a fantasy world where they believe that companies actually follow their own written policies.  The reality is that company policies are often written by lawyers or human resource drones and these policies are not actually followed on the factory floors.

The Wait A Second blog first reported the Kuebel decision in this post.

There is now an iphone app that lets employees track there own hours and determine the gross wages due, including overtime pay.   This is a great new tool for employees who are being screwed out of overtime pay or wages.   Employees can now easily keep their own records of the time they worked.

It is called the Timesheet App and it was created by the U.S. Department of Labor.  It is free and available in English and Spanish.  The app works on iphones and on the ipod touch.  Employees can now easily prove how much time they worked.  This could prove to be powerful evidence in an overtime pay or wage claim.

Workers who use the app can add comments about their work hours and produce a summary of hours worked in a daily, weekly and monthly format.  Workers can also email the summary of hours and gross pay earned as an attachment.

In overtime pay disputes, employees do not have to rely on their employer's bogus records.   Now employees can keep their own records on the app and these records can prove invaluable in cases where employers do not maintain accurate records.

If are not being paid your full wages or overtime pay, you should use this app to record your hours.   Your employer no doubt will contest your hours and with this app, you will have solid proof.

For more on the app, see the article in the Wall Street Journal.

Call center employees are unquestionably entitled to overtime pay, yet they are among the most stubbornly undercompensated groups of overtime-eligible employees. While many companies have relocated their customer service call centers abroad to India and other countries to avoid minimum wage and overtime laws, many remain in the US and their owners simply flout these laws. Aside from not receiving overtime compensation for hours worked in excess of 40 in a work week, many call center employees are simply not paid for all compensable hours whether they work over 40 hours in a week or not. In fact, call center employees are often not compensated for purported "off the clock" workday activities such as routine bathroom breaks or time spent waiting between customer service inquiries, despite the fact that the Department of Labor considers this time to be compensable.