Student guest workers protest outside a Times Square McDonalds back in March, accusing the company of refusing to pay its workers overtime and wage theft.
Despite the promise of certain legal rights to safe, healthy, and fair work conditions, sweatshops and slavery still exist here in the United States. As exposed in last month’s issue of The Green American, “Fair Labor at Home,” in fleeing from terrible working conditions in their native countries, many immigrants are flung from the frying pan into the fire. Seeing their precarious financial or legal situation, certain unscrupulous employers will sometimes lure desperate immigrants into their employment with promises of a better life, only to subject them to the very conditions many were trying to escape in the first place.
While in very sad cases employers use economic coercion, threats of deportation, or physical force to exploit their workers, part of the battle is knowing your rights as a worker. After all, how can you know when your rights are being violated and thus be incited to action, if you weren’t aware you had rights in the first place?
So whether you’re just touching down on American soil for the first time or have never left it, it’s important to get acquainted with your legal rights. That’s why we here at Green America have compiled a short list of some of your most fundamental rights as a worker.
A quick caveat: The information provided in this post does not constitute legal advice. It is merely a list of certain legal rights and certain resources that can describe your rights more in full. It is my hope that this post will serve as a simpler alternative to the labyrinth of links and pages that is the Department of Labor’s website.
There’s a federal minimum wage ($7.25/hour) and your state’s minimum wage (varies) — employees are entitled to the higher of the two. However, there are certain industries (agriculture, industries where tipping is prevalent, etc.) and positions (internships mostly) where it is legal for employers to pay their employees less than minimum wage. Some of these exceptions will be covered below.
Overtime for Hourly Workers
According to Federal labor law, when an employee works over 40 hours in a single week, s/he is owed a minimum of 1.5 times regular pay for every additional hour worked over 40. The week “need not coincide with the calendar week, but may begin on any day and at any hour of the day.” Federal law does not permit averaging of hours over two or more weeks.
Employees are not automatically entitled to overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest. Overtime is about the hours worked in a given week, so as long as the 40 hours plus is worked within a seven day window, the exact days worked doesn’t matter – be it Veterans’ Day, Christmas, or the day of your mother’s funeral.
Keep in mind that many professions are exempt from receiving overtime so make sure to check if you qualify before you go busting any doors down.
Overtime for Salaried Workers
If you make less than $23,600 ($455/week) you automatically qualify for overtime — even if you work in an industry that does not typically allot overtime rates. If your employer cuts your pay when you miss part of the work day, you’re not exempt. However, if neither of the aforementioned criteria applies to you, you may still merit overtime (unless of course you work in an exempt field).
There are no federal mandates requiring that employers allot their employees meal breaks during the workday, only state laws. However, not every state has bothered to enact regulations. Only 20 states — California, Colorado, Connecticut, Delaware, Illinois, Kentucky, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New York, North Dakota, Oregon, Rhode Island, Tennessee, Vermont, Washington, and West Virginia — require that employers to provide some sort of break for meals. Click here for a rundown of your state’s regulations if you’re lucky enough to work in an aforementioned state.
The outlook is even bleaker when it comes to breaks before and after lunch. A paltry nine states — California, Colorado, Illinois, Kentucky, Minnesota, Nevada, Oregon, Vermont, and Washington – require that employers give their workers’ intermittent “rest” periods throughout the workday.
According to the Family and Medical Leave Act (FMLA), in order to merit sick leave you must (1) have worked for your employer for at least 1,250 hours over the last 12 months; and (2) work at a location where there are at least 50 employees employed by your employer within 75 miles.
Those who do qualify are allowed up to 12 weeks of unpaid, job-protected leave for the birth or adoption of a child or for the serious illness of the employee or their spouse, child or parent.
But if the FMLA doesn’t apply to you, don’t give up hope! Many local governments have enacted their own regulations regarding sick leave.
Minimum Wages for Tipped Employees
Some states allow an employer to pay their employee less than minimum wage when the remaining portion can be made up in tips. For example, in North Carolina an employer can pay a waiter, bartender, or hotel maid as little as $2.13/hr as long as they make more than $20 in tips a month. For a full list of wages by state, check out the DOL’s website.
Filing a Complaint
Think one of your rights has been violated? For wage violation employees may find out how to file a complaint by contacting the local Wage and Hour Division office or by calling the program’s toll-free help line at 1-866-4USWAGE (1-866-487-9243). “In addition, an employee may file a private suit, generally for the previous two years of back pay (three years in the case of a willful violation) and an equal amount as liquidated damages, plus attorney’s fees and court costs.”
For safely or environmental violations, workers or their representatives may file a complaint or request that an Occupational Safety and Health Administration (OSHA) inspect their workplace if they believe there is a serious hazard or that their employer is not following OSHA standards via fax, email, or telephone.
Protection for Whistle Blowers
The OSHA will withhold the identity of the whistle blower if requested by the worker. Thanks to the Occupational Safety and Health Act of 1970, it is illegal for an employer to fire, demote, transfer, deny a raise, or discriminate in any way against a worker for filing a complaint or using other OSHA rights. Remedies can include job reinstatement and payment of back wages.