This article originally appeared in Southern Exposure Vol. 9 No. 4, "Working Women: A Handbook of Resources, Rights, and Remedies." Find more from that issue here.
The information in this article is based on a series of worker rights handbooks: “What Every Woman Worker Should Know About...” discrimination, job safety and health, unemployment compensation, minimum wage and overtime laws, sexual harassment and the National Labor Relations Act. The handbooks are available for 50 cents each (35 cents each for 50 or more copies) from: Women in the Work Force, AFSC, PO Box 2234, High Point, NC 27261.
Your legal rights are important tools for winning workplace improvements.
Knowing your legal rights as a worker is important. If you are employed in a nonunion workplace, your legal rights may be the only tool you and your co-workers have for receiving fair treatment. As a union member, knowing about workplace legal rights can make your union a more effective and powerful organization.
Laws affecting the workplace usually cover both male and female workers. Many laws are federal, but enforcement may be by a state or local agency. Laws such as workers’ compensation and unemployment compensation are state laws administered by the state. These laws vary from state to state.
This article provides a broad overview of the worker protections that presently exist. However, you should be aware that the present conservative administration has made its lack of commitment to workers and women evident in proposals weakening important regulations. You should check with a women’s employment group, labor law center, legal aid office, American Civil Liberties Union (ACLU) chapter or attorney before you initiate any action, particularly in areas of dis crimination or safety and health. When hiring or seeking the advice of an attorney, be sure she or he is experienced with the type of case you have.
Title VII of the Civil Rights Act of 1964 prohibits discrimination against any person based on race, sex, religion or national origin as related to any condition of employment. Title VII covers you if you work for or seek employment from: private employers who employ 15 or more workers; state and local governments; public and private educational institutions; employment agencies; and labor unions. Title VII covers discrimination in hiring, firing, benefits, promotions, working conditions and personnel policies.
The Pregnancy Disability Act of 1979 is an amendment to Title VII. The act says that dis crimination on the basis of pregnancy, child birth or related medical conditions is unlawful sex discrimination. This applies to hiring, firing, promotions, leave policies and other fringe benefits such as health plans. The general rule is that pregnant women must be treated the same as all other temporarily disabled applicants and employees. If an employer provides sick leave and dis ability insurance for employees, the benefits must include benefits applied to pregnancy. Abortions do not have to be included in insurance plans, but do have to be covered by sick leave and any other benefit plans. The law does not require an employer to offer a disability plan.
Sexual harassment is any unwanted sexual attention ranging from looks, gestures, physical contact and pressure for sexual activity to rape. Sexual harassment is a violation of Title VII. See the article on sexual harassment on page 114 for more details.
The Equal Pay Act of 1963 was passed to guarantee that women and men receive equal pay for substantially equal work. Equal work means jobs with equal skill, equal responsibility and equal effort done under similar conditions. The act covers private employers with 15 or more workers, public schools and local, state and federal governments. Remember, “equal pay” refers to pension plans, vacations and other benefits in addition to actual wages.
The Age Discrimination in Employment Act protects workers between the ages of 40 and 70. The act makes it unlawful for any employer, labor union or employment agency to discriminate on the basis of age in hiring, firing, wages and other benefits. All state and local public employees and people who work for private employers with 20 or more employees are protected by the law.
If you feel that you have been a victim of discrimination in violation of any of the above laws, you should file a charge with the Equal Employment Opportunity Commission within 180 days. See the article on page 110 for an explanation of how EEOC works.
Executive Order 11246 forbids discrimination on the basis of sex, race, religion or national origin by certain federal contractors and subcontractors. Which contractors are covered and to what extent is determined by the size of their work force and the amount of the contract. These levels are called thresholds. Proposals by the Reagan administration aim to raise the thresholds, thereby decreasing the number of workers covered by the executive order.
The importance of the executive order is that it forces federal contractors to adopt affirmative action practices. Federal contractors are everywhere. They include most banks, defense contractors, highway construction companies and any other private businesses that sell goods or services to the federal government. The executive order has been a powerful tool in the past for civil-rights and women’s organizations concerned with affirmative action. Order 11246 was the key to success for the Coal Employment Project’s effort to open the coal mines to women (see page 47 for the full story).
If you feel you have been a victim of discrimination and believe your employer may be a federal contractor, contact the Office of Federal Contract Compliance. All discrimination charges must be filed with the appropriate agency within 180 days of the discriminatory act.
Some states have their own laws prohibiting employment discrimination. You should check with your local legal services office or the ACLU to see if this is the case where you live. It may mean that discrimination complaints or charges are filed with a state human-rights agency instead of with the Equal Employment Opportunity Commission.
Wage and Hour Laws
These laws set the lowest wage your employer can pay you as well as the most hours you can work before you are paid overtime. Workers with the following employers are covered by the federal wage and hour laws:
• Businesses such as factories, department stores, hotels or businesses which are part of a national company or chain (examples: restaurants, insurance companies). Also covered is any business which does at least $325,000 worth of business a year.
• Private hospitals and nursing homes, private schools for the mentally ill or handicapped, and private pre-schools, elementary and secondary schools.
• Laundries and dry-cleaning services.
• Construction companies.
• Domestic service workers (including day workers, housekeepers, cooks and full-time babysitters) if they work at least eight hours a week or earn at least $ 100 a year.
• Clerical and other workers who regularly use the phone or mail to get in touch with businesses in other states.
• Federal government employees.
Employees of state and local (city, town and county) governments are not covered, and workers who are “executive, administrative and/or professional” are also not covered. This includes school teachers. To find out whether your job fits the executive, administrative or professional category, or if you are not sure whether the federal minimum wage and overtime laws cover you, call the Wage and Hour Division of the U.S. Department of Labor. See Resources, page 107, for the address.
The federal minimum wage law says that workers who are covered must receive a minimum wage of $3.35 an hour. This minimum is raised periodically by Congress to increase with inflation.
Those workers covered by federal overtime laws must be paid one-and-a-half times their regular rate for every hour worked over 40 in one week. This is frequently called “time and a half.” If you work more than eight hours in one day, but your weekly total is 40 hours or less, you do not have to receive overtime pay for the overtime hours you worked that day. There is no federal law limiting the number of hours your employer can require you to work in one week, unless you are under 16 years of age. Domestic workers and workers employed in movie theaters are not covered by federal overtime laws.
Under federal wage and hour laws, tipped workers are those who regularly receive more than $30 a month in tips. These tips can be considered part of the worker’s wage, but can’t count for more than 40 percent of the hourly wage. For example, a waitress must be paid at least a minimum wage, which is $3.35 an hour. Her boss is allowed to let the waitress’s tips pay for 40 percent of that amount, or $ 1.34 an hour. Her boss will pay her $2.01 an hour (no less) to add up to a total of $3.35 an hour. State minimum wage and overtime laws vary from state to state. In addition, other wage laws may exist in your state. Check with the state department of labor to see what they are.
Unemployment compensation is the insurance that’s paid to eligible workers who become unemployed through no fault of their own, such as being laid off. It is usually administered by each state’s Employment Security Commission (ESC). This office may be known as the job service or unemployment office. Its two main purposes are to help anyone who is unemployed find a job and, if work cannot be found, to pay eligible workers unemployment insurance. Unemployment compensation is not a free handout. It is insurance against the loss of income for eligible workers. Covered employers are required to contribute to the unemployment insurance fund in case their employees become unemployed.
For you to be eligible, your employer must contribute to the fund. Most large employers are required to contribute. Domestic and agricultural workers are sometimes covered. To find out if your employment is covered, you should ask at the ESC in your community.
The law varies from state to state as to who and what types of unemployment are covered, allowable reasons for termination and the amount of money workers are eligible for. The amount of unemployment insurance you receive is based on your earnings during the 15 months before becoming unemployed. Temporary and partial unemployment may also be covered. You must be able and willing to return to work to be eligible.
It is important to file for compensation as soon as possible after you are out of work. In most cases, you will only be eligible for unemployment if you have been laid off, your hours have been reduced, or your employment is seasonal. However, you may quit a job with good cause and the ESC may still determine you eligible for benefits. For example, a woman required to change work shifts may be unable to arrange child care and be forced to quit. Because the employer changed the terms of the original employment causing unreasonable hardships on the worker, she may be covered by unemployment insurance even though she quit.
Sometimes employers fire workers without “good cause,” and the reason given for the firing may not be the real reason. If a worker is labeled a “troublemaker” for standing up for her legal rights, her employer may retaliate by firing her. However, the employer may give insubordination as the reason for the termination or say the worker violated a company rule which has never been enforced before. In cases such as these the terminated worker should file for compensation and become informed about the appeal procedures for disputed cases. During appeals hearings, workers can bring witnesses to testify and present other evidence. If you are ever in such a situation, seek the advice of a union representative, attorney or women’s organization familiar with the laws and procedures. They can support you and help you to prepare for your hearing.
Workers’ Compensation covers workers who are injured as a result of an accident on the job or are suffering from a disease caused by the type of work they do. All states have workers’ compensation laws. Which employers are covered and procedures for filing processing claims vary from state to state. Check with your union representative or legal aid office to learn what the rules are in your state.
The National Labor Relations Act (NLRA)
The NLRA is the law which protects your right as a worker to organize for better working conditions. This includes such activities as forming or joining a labor union; choosing representatives who will bargain with your employer for you on wages, hours and other working conditions, or working with your co-workers to ask your boss for a cost-of- living wage increase. The NLRA makes it illegal for employers to prevent workers from organizing into workers’ groups or unions, and outlaws certain actions by unions.
The National Labor Relations Board (NLRB) is the independent federal agency that administers the NLRA. The NLRB’s two functions are to prevent and correct unfair labor practices by both employers and unions and to hold elections to decide whether workers want to be represented by a union.
The NLRB can also help if you are harassed or punished for organizing or asking for improved working conditions. This is known as “retaliation” and refers to anything which results in poorer working conditions for you because of your activities to seek better working conditions. Examples of retaliation are anything from transferring you to another room to lowering your wages to firing you. Note that the NLRB does not have the power to force your employer to improve your working conditions; it only protects your right to ask for and to organize for better conditions.
NLRB headquarters are in Washington, DC, but the NLRB regional offices handle NLRB matters in their areas. These offices are listed in the resource box on this page.
The NLRA covers you whether you are in a union or not. As a matter of fact, the NLRA states that you and your co-workers have the right to “engage in concerted activities,” which means that you can join with your co-workers to improve working conditions without becoming part of an established union. The NLRA even protects you as an individual if you ask for better working conditions, as long as the changes you ask for also affect your co-workers.
Some examples of rights protected by the NLRA are:
• asking as an individual for improved sick benefits which will affect all workers.
• complaining to any state or federal agency about problems on the job;
• joining a union whether the union is recognized by your employer or not;
• discussing work problems with your coworkers and choosing one or two workers to talk to your supervisor about your concerns.
Some examples of employer violations of the NLRA are:
• transferring you to another room for joining with other co-workers to ask for better lighting where you work;
• firing you for filing a complaint with the Wage and Hour Division;
• threatening you and your co-workers with loss of your jobs or benefits should you join or vote for a union.
It is also illegal for your employer to discriminate against you for filing charges against him/her with the NLRB or for testifying at an NLRB hearing.
The NLRA covers only companies which do business, directly or indirectly, across state lines. Most manufacturing companies, retail stores, restaurants and businesses are covered under the act. Small local businesses, such as family-owned grocery stores and restaurants that are not part of a chain, are not covered, nor does the NLRA cover domestic workers, individuals employed by a parent or spouse or employees of the government (federal, state or local). Ask the NLRB whether or not your employer is covered.
A complaint should be filed with the NLRB when you feel your employer is guilty of an unfair labor practice and you can’t settle the problem by talking with your boss. Filing a complaint is a big step and an important decision. Because the NLRB process is long and complex, you should seek advice before you file. You must file within six months of the unfair practice. If you belong to a union, you should first talk over the problem with your union representative or with your shop steward. You are starting off in a much better position if you do belong to a union because the union can help you file your complaint and provide the moral and legal support which you will need. If you don’t belong to a union, you may want to consult a lawyer or women’s organization. You should also call the NLRB office in your area to make sure your complaint is covered under the act.
You should remember that your employer will not take too kindly to having a complaint filed against him/her. Even though the NLRA says that it is illegal for an employer to take action against a worker for filing a complaint with the NLRB, your employer can find subtle (and not so subtle) ways of harassing you which are unlawful but difficult to prove. The burden of proof is on you, not your employer. Before going to your employer or the NLRB, plan carefully what your argument is going to be by gathering facts (dates, names, times, places) and lining up witnesses who will support you.
You should keep a diary describing all that has happened. This will help you to remember important details. You should keep in mind that if you complain to the NLRB you will have to wait a long time for the problem to be settled because the NLRB is slow in handling cases since they have so many. If possible, have your union deal with the problem. Unions represent many workers and will have far more influence with your boss than you alone will have. If you don’t belong to a union, think seriously about joining with your co-workers for strength, support and protection.
The NLRA states that if a majority of workers in a workplace decide to have an organization or union represent them, their employer must bargain with the organization or union. Your employer may refuse to recognize the organization or union as your representative. If this happens, you can ask the NLRB to hold a secret ballot election so that workers at your company can vote and establish officially that the organization or union represents the workers. The NLRB will hold an election only if you and your co-workers, the union or your employer files a petition asking to have one. If the organization or union wins the election, the NLRB makes it the official representative of the workers. Your employer is then legally required to recognize it.
Occupational Safety and Health Act (OSHA)
In 1970, the U.S. government passed the Occupational Safety and Health Act (OSHA), which guarantees every worker a safe workplace. This act is enforced by the Occupational Safety and Health Administration (also known as OSHA), an agency which sets standards for safety and health where you work and inspects your workplace to make sure your employer follows the rules. In some states the state department of labor enforces OSHA.
OSHA sets minimum standards for working conditions. These standards are legally enforceable. Standards are written guidelines which you can use to evaluate the safety of your plant, site or office. The legal limits for chemicals and working conditions are not always safe limits. Even with the current noise standard, research shows that one out of six exposed workers will suffer a hearing loss. Standards are not set for all hazards; some standards are strong, and even the weak ones are better than the conditions in many plants.
It is critically important to keep records of all your talks with your boss. If you decide to call in OSHA, your case will be stronger if you have documents to prove your efforts to get the hazards corrected. When you make a demand, do it in writing. When your boss promises action, get it on paper.
If you think that conditions in your work place violate the law and your boss won’t clean up, you should file a complaint with OSHA. You can get an OSHA complaint form by calling the OSHA office in your area or by writing to OSHA. To find the location of the OSHA office in your area see page 122.
Your answers on the complaint form will probably be the only description of your work place the inspector will see before she or he comes to your workplace to investigate your complaint. If possible, your complaint should include:
• your name, address and phone number
• the name of the company, address and phone number
• a clear description of the hazards and the workplace
• that the hazards are a serious threat to the health and safety of many workers
• that your boss has done nothing to correct the hazard
You have the right to tell OSHA not to use your name when they inspect, so your employer will not know who filed the complaint. Be sure to keep a copy of the complaint for yourself in case proof is needed later.
If you know a danger is likely to cause death or permanent physical harm, explain the hazard to your foreman or boss or shop steward. Offer to do other, safer work until the hazard is corrected; be sure that you have other workers there as witnesses when you talk to your employer. Give your employer a chance to respond. If nothing is done, call the OSHA office in your area. They have a special inspection procedure for these “imminent danger” complaints. OSHA should inspect no later than 24 hours after you complain. If you think it’s taking too long, call again and ask why there has been a delay. Be sure to tell them there is an “imminent danger’’ at your workplace. If you feel your life is in danger, you have the right to refuse unsafe work. But make sure you have told your boss, in the presence of other workers, why you refuse to do the job and that you’re willing to do other work.
If you’re fired or disciplined for refusing dangerous work, you should file a section 11(c) complaint with your local OSHA office within 30 days of the disciplining. If you have been working on this safety issue with other employees, you can also file a complaint with the National Labor Relations Board.
Section 11(c) says you can’t be discriminated against by your employer for requesting an OSHA inspection or asking your employer about health and safety. If you think your employer has taken action against you for this reason, file an 11(c) complaint. These forms may be obtained from the OSHA office. You should also file a charge with the NLRB.
The OSHA director usually determines whether your employer should be fined or given a citation for safety and health violations. A citation is a list of violations the inspector found at your work place. It also tells how long the company has to correct them. Simple violations, such as a faulty fire extinguisher, must be fixed sooner than hazards that require more complex improvements.
Plans have been made by the present administration to weaken OSHA’s powers, to lower the standards that industries must meet and to make it harder for workers to complain about unsafe conditions. For example, the Reagan administration is trying to rewrite and weaken the long-fought- for cotton dust standard. It has also postponed implementation of the noise standard and most likely will try to weaken this, too. These moves threaten to undo all the hard-won gains in worker safety and health made since 1970. Write to your congresspeople and let them know that health and safety standards should not be weakened. Conditions will only get worse if we don’t take action.
Tobi Lippin is a community organizer living in Greensboro, North Carolina. She is former director of Women in the Work Force. (1981)