{ 99 comments… read them below }

  1. Brightwanderer

    Yikes, no right to paid leave? The differences between US and UK employment law just boggle me…

  2. Anonymous

    For a couple of these about firing specifically they are legal, but you may be eligible for unemployment insurance in the US. If your boss fires you because of the color of your shirt, yes it is perfectly legal, but you may be able to collect unemployment benefits. Collecting unemployment does not mean that you were wrongfully fired. In fact a lot of firings that make perfect sense will still let you collect. So just because you win benefits doesn’t mean you’ll win a wrongful termination suit or any such thing.

    1. Jamie

      True. Unfortunately in some states the bar for being denied unemployment is gross misconduct, so unless you are the poster who punched out a co-worker at the Christmas party, or are caught embezzling many states will grant unemployment – even if you were fired for cause (incompetence, chronic absenteeism, etc.)

      Anonymous does make a very important point that the standard for collecting UI is very different than that which needs to be met to win a civil suit.

      1. Laura L

        I think it’s fine for employees who haven’t engaged in gross misconduct to receive unemployment. It helps keep them afloat while they search for a new job, it helps the economy (because people on unemployment can buy things, whereas people with no income cannot), and it helps them take care of their kids and other family members.

        I understand that employers have to pay more in taxes when employees, but I think the benefits to society make it worthwhile.

  3. Joey

    #9. In some cases the WARN Act requires notice or warning of mass layoffs or plant closings.

    10. A little misleading to employers. having no reason or a stupid reason for firing an employee is frequently not believable if a discrimination claim is made.

    1. Ask a Manager Post author

      Sure, but the reality is that no law prevents an employer for firing an employee for a completely silly reason; the only laws prohibiting firing are if the person is being fired because of their membership in a protected class or as retaliation for protected lawful activity.

      1. L.A. Mass

        Actually, the third exception is if the employee lives in Montana, where the Wrongful Discharge Act requires just cause before an employee can be terminated.

  4. Chris Walker

    Recommended reading on this topic: ‘ Can They Do That? Retaking our fundamental rights in the workplace’, by Lewis Maltby. It’s a fairly depressing read, but well worth it

  5. Piper

    None of these are surprising, but it is disheartening and somewhat depressing that all of the power lies with the employers. They can basically jerk employees around without any real consequences. There really is no such thing as employee rights (unless you belong to a union and well, not many people do anymore).

    1. Ask a Manager Post author

      There actually are quite a few employee rights: rights about overtime pay, workplace safety, discrimination, retaliation, disability accommodation, sexual harassment, etc.

    2. Joey

      Piper,
      Sure there are employee rights like the right to treat your job (and company) as part of the journey instead of the final destination. And the biggest consequence of treating good employees like crap is they won’t be able to keep them for long which is hugely expensive.

      1. Jamie

        “Sure there are employee rights like the right to treat your job (and company) as part of the journey instead of the final destination.”

        Beautifully put. We have rights because “at will” works both ways.

        And as an aside, many employees have more “rights” in reality than on the books because so many employers don’t read Alison’s blog and truly believe that they can’t give a negative reference, fire someone in a protected class for reasons unrelated to the class, etc.

        Also, Alison was referring to legal rights…you likely have far more if you read your company handbook. Even though she was correct that most of us don’t have an employment contract, per se, most of us do have an employee handbook which is typically a binding contract between the employer/ee.

        I.e. the government may not have given me vacation time, or hourly people paid breaks, but my company handbook sure does and that’s binding.

        1. Ask a Manager Post author

          Yes! This is important to realize. Policies in an employee handbook are binding. So, for instance, if your employee handbook says that your employer “shall” (as opposed to “may”) use progressive discipline and warn you before you’re fired, that’s binding. Most employers are smart enough to include exceptions for really egregious behavior, of course, but not all of them are.

          1. Anonymous

            Employee handbooks are NOT necessarily legally binding. Some are, some aren’t, and many are written so that they create no obligation on the part of the employer, regardless of the language of the policies themselves.

            1. Ask a Manager Post author

              Even if the handbook contains disclaimers that it’s not binding, courts have regularly ruled that certain statements and policies in a handbook may indeed be contractual promises (including things like promising annual evaluations/paid leave/certain disciplinary procedures/etc.). It’ll depend on the exact wording though — “shall” vs “may” and so forth, as well as state law.

          2. Suzanne

            What about if you’ve never been given an employee handbook? I’ve not had one handed to me at the past 3 positions. I’ve had to either make numerous phone calls, or search the intranet, or just never have any clue if one even exists. Is it still binding if your employer fails to get you to sign that you have seen and understand the employee handbook? Just curious!

              1. Suzanne

                No, they all had them, they just wouldn’t give you one unless you could figure out the right person to ask and then you never had to sign that you’d ever seen it. Signing that you had read the employee manual and any updates was something that was standard procedure at any job I’d had until the past 5 years. No more!

            1. Anonymous

              Sounds like an attempt to prevent the handbook from being considered binding. Dissemination is an important factor that many courts consider.

        2. fposte

          The states also frequently offer greater protections to workers; some have additional protected classes, or more FMLA, or stricter rules about hours, etc. The federal laws are kind of the worst-case scenario.

  6. Kelly O

    I’m walking proof your job can be changed umpteen hundred times without your even knowing until the deed is done. I have not voluntarily made a change and I’m on my third position in two years (and the probably sixth set of major changes to the third position since June.)

    It’s called “at-will” employment – believe me, my family has first hand experience (more than I care to think about) in walking in thinking you’re just going to have another day at the office, and walking out with a box of your stuff at 9:00.

    (Anyone need an admin in Houston? Because after this morning’s changes, I’m ready to say “no, thank you” to this round and the round that is coming in the next month or so.)

    1. Jamie

      Kelly – I may have a contact for you in the Houston area.

      Alison, would you mind shooting Kelly my email addy? I went to her blog but I didn’t see a link to email her directly.

  7. The Other Dawn

    #3, “hostile workplace” was a surprise to me. I always thought if a manager is swearing and yelling at an employee day in and day out, asking her if she’s stupid, and making them absolutely dread coming to work, that’s a hostile work environment. I guess it would only be a hostile work environment if the manager was doing that because the employee is female, or gay, or mormon,etc.

    1. Ask a Manager Post author

      Yep, just being really hostile and horrible isn’t illegal. The hostility has to be linked to discriminatory harassment based on race, religion, national origin, disability, age (40 and up only), military service, sex, etc., or retaliation for legally protected actions.

      1. ThatHRGirl

        And the important thing is that even if that could be proven, it has to be very extreme. So just a couple of gay slurs or racial comments would not suffice.

    2. ThatHRGirl

      Not a surprise to me at all. As someone who’s had to sit through many a sexual harassment seminar (because i have to investigate claims of harassment at times), there have been legal cases where a person is RAPED at work and it STILL did not constitute “hostile work environment”. Along with what AAM said, the harassment has to be SO severe and SO outrageous, and there has to be legal precident (unless they want your case to become legal precident) that most cases do not even come close to HWE.
      It is sad but true…

      1. anonymous

        How is being raped not considered “SO severe and SO outrageous”?? I mean, how much more severe and outrageous can it get?

        1. fposte

          If this is the Jamie Leigh Jones case, it went to a jury, which always makes things less predictable, and it seems that they jury bought the defendant’s argument that the sex was consensual.

        2. Evan the College Student (formerly A Current College Student)

          No idea of the facts of the case – and from the Wikipedia article, this doesn’t apply to the Jones case at all – but I could imagine a scenario where it wouldn’t be hostile environment. Suppose that the company had quickly and competently investigated the incident and fired the rapist, but the victim still sued them over “hostile environment”? I don’t think companies should be held responsible for crimes their employees commit. (In general, of course; there are exceptions.)

          1. Ask a Manager Post author

            That’s exactly right. Having and following a good harassment policy (you have a well-publicized reporting procedure, you investigate, you act, etc.) is actually a strong defense to most harassment charges.

        3. ThatHRGirl

          I’m not saying it’s not, I’m saying the courts have ruled that it’s not and these cases are all about legal precident. If someone else endured something far worse and it was ruled that it wasn’t HWE, it means you are probably SOL.

  8. Chris

    Regarding the at-will question….some states do have limitations (Montana being the obvious one because its statutory.) But a few states have an “implied contract” doctrine in the common law. This is in contrast to the explicit contract which is the binding employee handbook – which usually has a set of disclaimers such as “nothing construed herein is an employment guarantee and all employees are at will” and “nothing herein shall be understood to prohibit conduct protected by the national labor relations act etc.” A few more states have a “public policy” exception in the common law as well (i.e. being fired for not doing something illegal or being fired for not doing something that is in violation of professional license requirements etc.) Mileage may vary and it really depends on your state’s legal doctrine.

    The interview questions are interesting cases because that depends on the state you are in too and really how the question is worded. I once had an interviewer ask me if I was planning on having children (being early 30s wearing a wedding ring I guess) because the job posting clearly stated that long hours and travel would be required and that since it was a new position, it would need someone in it who wouldn’t be taking a leave within a couple years. If the question is a way of telling an employee that hiring decisions will be made based on that employee’s answer – than an interview question can be illegal. At least that’s how its been in my state and a few others. The court reasoned if a hiring decision wasn’t to be made on the answer then there was logical reason to ask it (hence the defacto prohibition on the question itself. )

  9. ChristineH

    Hopefully this will decrease all those “Is this legal” questions you just *love*. ;)

    As a regular reader, I am pretty familiar with many of the items on that list. However, I was surprised with #1 (asking questions related to certain topics). I’ve seen many lists of “Illegal Interview Questions” and all of those are generally included. I also find it odd that asking about disability is the only question that can NOT legally be asked. How is that question any different than ones asking about national origin or marital status? (I’m very familiar with the ADA, so you’d think I understand this. lol)

    1. ThatHRGirl

      I believe it is mostly to do with the medical privacy aspect, but I haven’t dug deep into this before. I’ve just always taught my interviewers to stay far, far, f**king FAR away from any of these questions that might give anyone the faintest idea that we make hiring decisions based on those things. That’s why you’ll see a lot of those lists that *say* “illegal” but don’t really mean that the question itself is illegal.

    2. Ask a Manager Post author

      Yeah, the concept that “you can’t make a hiring decision based on the answers to these questions” often gets turned into “you’re not allowed to ask these questions.” And after all, why would anyone ask them if they can’t use the answers? But the act of asking itself is not illegal, contrary to popular belief.

      My hunch is that disability is the exception because that’s from a different law (the ADA); the others are from Title VII.

        1. ChristineH

          Oh btw, which law are you referring to in referencing Title VII? Is that the EEOC (mentioned in your post below)?

        2. ChristineH

          Argh nevermind….I see it’s the Civil Rights Act. (must learn to read everything before asking lol)

          1. fposte

            Just to clarify–or make it worse :-)–the EEOC is the federal agency responsible for enforcing anti-discrimination laws, while the Fair Labor Standards Act, the Family and Medical Leave Act, and other wage/hour stuff are under the purview of the Department of Labor. So different pieces of the feds care about different employee rights.

      1. Wes

        this one really suprised me as I am now covered by that (back injury twice at a warehouse job within 2 years)
        I always thought you had to be truthfull on all aspects of your abilitys (I have a 40/20/10lb lifting restriction – seldom/occasional/continuus)

        so what would happen if I work for an employer that has a 50lb requirement and then hurt myself again. my doctors said within 5~7 years I would need additional surgury on my back if I continued in a warehouse environment.
        or would that just be a thing for L&I (as their doctors agreed to the workplace change)

        1. Ask a Manager Post author

          They can ask you if you’re able to perform all the functions of the job with or without accommodation; what they can’t do is inquire into specific disablities or the details of them.

  10. Student

    I’ve always wondered this: what point do the laws about making hiring decisions based on race, religion, number of children, age, etc. actually kick in?

    I know that there are businesses that obviously and openly discriminate on these points in their hiring practices. Some of them are national chains, though many of them are smaller businesses, so it doesn’t appear to be obviously correlated to “business size” or the number of people employed. There are several local restaurants, a few of them part of significant chains, that clearly hire only people of a certain ethnicity or a certain age or a certain gender. Mexican restaurants that only employ Hispanic waiters, Chinese takeout places that only hire Asians, Hooters only hires young buxom female waitstaff, one “fancy” restaurant (that I rather despise for doing this) that only hires black temporary immigrant waiters for a segregation-era atmosphere. There are several restaurants that I believe do this for whites as well, but it’s harder to prove because the area I live in right now is overwhelmingly white. I can see some of these places being exempt due to size, like the small Chinese takeout places. But the big chains and high-end restaurant I don’t understand at all. What’s the angle they use to avoid falling under jurisdiction of these laws? Or are they avoiding the law on the famous “you-can’t-prove-it-nya-nya” technicality?

    Clearly there are also exemptions for the religion issue as well. There are lots of religious organizations that hire significant numbers of people and then expect you to at least pretend to follow their faith. There’s a huge debate in the news over whether the healthcare law should apply to Catholic-owned businesses because it compels these institutions to cover birth control, and the Catholic-owners don’t want to do that even though they are subject to the laws that require them to hire folks of any religion. Do these same institutions get a pass on other laws? How does one distinguish between the non-exempt-from-the-law and the exempt-from-the-law job for a religious entity?

    In certain cases, I can see clearly why there should be an exception. Clearly, the government shouldn’t destroy all churchgoing in an effort to provide all preachers with equal employment opportunity at any church, regardless of faith. That would be stupid. I also don’t want the government to destroy the small Chinese takeout joint by requiring them to hire any chef, regardless of ethnicity. But I really don’t understand why a religious college or hospital, or a chain restaurant, gets to discriminate indiscriminately.

    1. Ask a Manager Post author

      The EEOC does make an exception for religious institutions. And you’re allowed to require certain characteristics if they’re truly a requirement for the job (a lingerie store can refuse to hire male bra fitters, for example).

    2. fposte

      There are also statutory minimums on the number of employees for various relevant laws–from http://archive.eeoc.gov/employers/investigations.htm:

      Statutory Minimums

      Title VII of the Civil Rights Act of 1964 applies to employers with fifteen (15) or more employees.

      The Age Discrimination in Employment Act of 1967 (ADEA) applies to employers with twenty (20) or more employees.

      Title I of the Americans with Disabilities Act of 1990 (ADA) applies to employers with fifteen (15) or more employees.

      The Equal Pay Act of 1963 (EPA) applies to most employers with one or more employees.

  11. Jamie

    “But I really don’t understand why a religious college or hospital, or a chain restaurant, gets to discriminate indiscriminately.”

    I see a huge difference in selecting people of a certain ethnicity for the positions you stated and religious institutions requiring certain positions be filled by people of their faith.

    The ethnic make-up of the waiter doesn’t affect the quality of the food. The religious views of a teacher can absolutely affect the product – i.e. the education of the student.

    If I am paying a lot of money to send my child to Catholic school I expect that all teachers, and anyone of authority with whom my child would come into contact, would be acting according to the tenets of the church. For the same reason a fundamentalist Christian school shouldn’t be forced to hire a Catholic teacher.

    I would say in cases of religious institutions they have the right, and obligation in many instances, to make faith based hiring choices. Because people are selecting those institutions in whole, or in part, because of their religion.

    In many religious schools it’s not just compartmentalized to “Religion – Period 5.” Faith is woven through the history, science, and even math classes. A consumer’s (in this case parent’s) right to get what they are paying for trumps the right of a candidate to be hired regardless of faith.

    1. jmkenrick

      I agree with you Jamie, although I am curious about the legal question. There must be some exception in the law that allows certain institutions to make hiring decisions based on race, gender, etc.

      For example, I know that say, modeling companies get to put out a casting call for a tall, black woman or a buxom, white, brunette and that’s not illegal. I’m curious about how that exception is structured.

      That said – @Student, I think much of the stuff you’re describing regarding restaurants may be discriminatory hiring, but no one has sued them or proved that that’s what they’re doing. It’s illegal to not hire someone because they’re NOT Asian, but it’s not illegal to only hire Asians simply because you’re part of that community and know more Asians, etc. Additionally, with the restaurants, knowing a certain language might be necessary to perform the job well (if the chef is, for example Chinese) and I believe that’s a total legal requirement.

      1. Joey

        It’s called a Bona Fide Occupational Qualification or bfoq. Basically you can make hiring decisions based on protected categories if there is a legitimate job related reason. Like if you wanted to hire males only for a men’s locker room attendant. This happens with actors too.

          1. Ask a Manager Post author

            What if you were casting a movie and were casting a child born to, say, two Asian parents? Couldn’t you reject non-Asian actors simply for being non-Asian?

            Or what if you were casting an ad for makeup designed for African Americans? Or redheads?

            1. P

              …And sadly for Asian-American actors, MANY acting roles that purportedly portray Asian characters are still filled with non-Asian actors in the U.S. I think that any worrying about discriminating against non-Asian actors for Asian roles is ahead of our time!

      2. KellyK

        Good point. I think that if everyone working in a given restaurant is a member of a specific ethnic group, that could probably happen *without* any illegal discrimination occurring. (Except the “segregation-era atmosphere.” That sounds awfully blatant.)

        You already brought up two ways that could happen–hiring predominantly from a community you’re familiar with and language requirements. Another is what jobs people apply for. If someone’s looking to work in food service or wait tables, and they don’t see anyone of their ethnicity working there, they might reasonably assume that they’d be wasting their time in applying.

        Which is not to say I think that sort of discrimination *doesn’t* happen. Just that, since there are non-discriminatory reasons to end up with an all-Asian or all-Mexican or all-white staff, it’s hard to tell. Which means it’s probably very hard to prove, which allows it to continue in cases where it is deliberate discrimination.

    2. Jaime

      “I see a huge difference in selecting people of a certain ethnicity for the positions you stated and religious institutions requiring certain positions be filled by people of their faith.”

      The controversy that Student is mentioning with hospitals also involved the institutions in question receiving federal/state monies. Like in the case of Catholic Charities refusing to allow adoption to homosexual couples for faith reasons, but since some of their funding comes from the state they were forced to either abide by non-discrimination laws or lose that money. I think it’s a particularly tricky question when it comes to hospitals. At a hospital they are dealing with the public in a much less controlled way than say a school. They usually have many more employees and patients may not be there by strict choice (like when you’re taken to the nearest hospital via ambulance).

      That religious element can definitely make the situation even less clear cut than normal since it comes with it’s own protected class.

  12. Lexy

    I might be railed as an unrepetent capitalist here, but I really don’t wish that most of these were different. Maybe paid leave and breaks. But otherwise… I don’t know.

    Yes, I think jerky bosses who make coming in to work feel like a trip to the gallows should be fired and have the equivalent of a red letter “A” on their chest that makes them unable to hold a management position (this “A” doesn’t stand for adulterer though). I don’t think there’s any reasonable way to legislate that requirement that doesn’t create an undue burden on the employer to investigate every employee claim that they are being treated “unfairly”.

    As somebody who looks at compliance documentation for a living, that sounds like a nightmare that would do precisely nothing to lower the instance of jerky bosses, it would just change the symptoms of their jerkiness.

    1. Ask a Manager Post author

      I agree. I’m not saying that there aren’t times when this doesn’t suck — there absolutely are — but I think the alternative would indeed create an undue burden and not actually do that much to help employees.

      1. anonymous

        I would like the right to say “no” to something that would cause hardship, without being penalized for it. Early last year, we were told that our office was closing. We were also no longer allowed to work from home every day. Okay, fine. But the nearest open office is 300 miles away from me. I would have had to move to a different state. I would have to sell my house, which as everyone knows is not that easy these days, buy a new one (or rent), pack everything, change everything, and lose everything, in order to keep working.

        And I would have done it. Because that would have been the best and least expensive option for me. But I hated feeling like I had no choice. Luckily, they ended up keeping this office open. But a coworker of mine wasn’t so lucky…part of the provision was that if the new office was less than 50 miles from the current office, then a severance package would not be offered if the employee decided not to move. The office my coworker would have to change to was only 30 miles from his current office. But it is in the middle of the beltway, and it already took him 2 hours to drive to the office to begin with. 30 miles would have tacked on at least another hour, both ways. And he wasn’t allowed severance when he decided that was too much for him.

        So for instances like that, where the company is simply taking advantage of employees–I would really like a law that says we employees can basically tell the company “hell no”, and not be fired or laid off.

        1. Ask a Manager Post author

          But in this example the office was moving to another location. You want the right to refuse, but then where would you be working? If the jobs are moving, they’re moving. And not every job can be done from home.

          I think you might be saying that you want the right to severance in that case, which is a different thing. No law requires severance, so that might be what you’re talking about?

          1. anonymous

            The job wasn’t moving. The office itself actually wasn’t closing. They were just closing the office to IT (see second paragraph below for explanation). People have been working from home for years doing the same jobs they’re doing in the office now. The job functions haven’t changed. I suspect the work-from-home policy was being taken advantage of, and I can understand that. It wasn’t WFH that pissed me off, it was being told that I had to move to a different state to continue to do the same job, even though the office I was in right now would not actually be closing. AND, I wouldn’t even be guaranteed that if I DID move, that I would still have a job in that new location.

            Which brings me to my second point…I forgot to clarify that it was just IT that was being forced to move. The office I work in holds customer service, provisioning, and order entry type positions. All told, the office here holds approximately 1500 people. There are about 150 IT people. The VP of IT wanted to consolidate IT into a handful of main offices, so even though the office itself was remaining open, all IT personnel had to be moved to a different location.

            When asked why this was considered efficient, the upper management had absolutely no response, other than “this is the way we’re doing things”.

            1. Ask a Manager Post author

              It’s legit though for them to decide that they want to do something like that. Businesses have to be able to make decisions that are right for their business, like moving operations to a different location.

              1. Ask a Manager Post author

                Sorry, to be clearer, by “legit,” I mean I think it’s reasonable for them to do. The law shouldn’t prevent businesses from moving their operations to other locations.

              2. Jaime

                I think anonymous’s main point is more that they set up a system of severance that was too arbitrary. They setup these geographical limits that look good on paper, but then actually screw some of their employees because 50 miles can mean a 30 min commute or a 2 hour commute depending on your area.

                Here’s how I feel. When my employer wants me to do something, they expect that I’m going to do my best to do it well. They expect that I will adhere not just to the letter of what they want, but the spirit as well. Or maybe this is just what they hope for? ;) Anyway, I expect that the company I work for does the same thing. I don’t think it’s too much to expect that they will think about their decisions or rethink positions if reasonable feedback is presented. The whole idea of making the cutoff at 50 miles is that the best case scenario is at least an hour commute (I assume), so why wouldn’t they give severance to employees whose commute at 30 miles is also over an hour one way at the best care scenario (no snow, light traffic/on time public transit, etc)? The reasoning behind it, if that’s the reason, would support the friend’s position of “deserving” severance.

                And really, if you hired people under a work at home situation and then changed it to working the office, I think that’s a big enough change to offer severance to everyone who doesn’t want to make that change (assuming you’re offering it at all). Afterall, that can really be a huge change to your entire family’s setup.

                Of course, a company is absolutely entitled to make these kinds of changes. I just think if they want their employees to deal well with them, that this is part of dealing well with their employees.

                I don’t know how you legislate that kind of thing though, nor am I entirely convinced it should be.

              3. anonymous

                Jaime, I think you’ve articulated what I could not (or even realized what was bothering me so much). Everything about this has been arbitrary, and it’s not even this one example. And I meant to address the severance before–yes, I think a lot of the “unfairness” that we feel would have been mitigated had severance been offered across the board. As Jaime says…we’ve followed both the letter and the spirit of the law, which is what the company expects. But they only adhere to the letter. So from now on, that’s what they get from me.

            2. Jamie

              If it makes you feel better, leaving 1,500 users with no on-site IT support will punish them far more than any one employee could hope.

              I don’t speak in absolutes often – in fact I hedge my phrasing more than is advisable…but if what you’re saying is accurate I don’t think it will be a disaster – I’d put money on it.

              1. anonymous

                They’re actually keeping this location open now, and I think it’s largely because of that. They are closing the data center though, so who knows?

                Anyway, I’m done with the whole thing. I’ve been screwed over more times than I can count, and I’m tired of giving the company the benefit of the doubt. If it was a company on the brink of bankruptcy, maybe I could care (and have, back when I worked for a company that did go bankrupt). But it isn’t, and I don’t.

    2. Laura

      I think absolutely, not maybe on the need for changes to our paid leave & breaks structure. It is ridiculous to me that American workers are actively discouraged from taking breaks or vacations unless you work for a great company.

    3. Chris

      “Capitalism” and employers free markets aren’t the be all and end all of industrial policy. We often have this notion that the free market – even in labor markets – work best. Therefore we should allow employers to do whatever they want and let the market sort it out.
      In neo-classical economic though…free markets fail more than they work. After your first semester of learning the math of supply and demand curves – you’ll spend the rest of undergrad econ education studying particular forms of market failues. Unfortunately, free markets aren’t that efficient in the long run. The same can be said of free labor markets.
      ght now the US college population is over 60%. Without better FMLA policies, you can bet a lot of those college educated women will leave the workforce. The overall wage/status penalty will be too high for them to come back. That’s a lot of skilled workers wasted. Though it may be efficient for any individual employer to not hold a particular job for an employee on FMLA or offer some paid leave – its better for the GDP of the nation if all employers do adopt “family friendly” policies. There are case studies of scandinavian countries where economic output was near doubled by mandating policies that kept women in the workplace. Point being regulation exists not as a matter of “fairness” to any employee – but because free markets, including labor markets, left to their own devices will destroy themselves.

      It was a sad day when they stopped teaching industrial relations in management schools. There was a day when macroeconomic thinking was a given. Now…it barely exists or when it does its branded “anti-capitalist.!

        1. Chris

          The recent recession had a dissproportionate effect on men. In “good” times women won’t be 50% of the workforce. But that’s not the real issue – and not the part of the labor supply curve we need to worry about. Just over 60% of low wage jobs are held by women.

          In the “desirable” jobs that require more training, women do have a tendancy to drop out of the workforce. The compensation penalty for single women in high wage work is almost non-existant. The compensation penalty for women with families is high – even when standardized to lower wage work. Hence the incentive to opt out (that’s the most common explanitory hypothesis anyway.) In times of high growth, well educated women do tend to drop out of the workforce. Which in turn helps slow growth. This becomes more of a problem with women being the majority of the college educated population. That pattern holds in pretty much all the neo-liberal
          economies.
          If you have a JD, you may go back to your firm after weaning your kids if you weren’t doomed to the associate level (unless your partner gets laid off from the $250k wall st job.) A national policy of family leave equity is probably much for efficient for the labor market as a whole even though it may be detrimental to each individual firm.

            1. Ask a Manager Post author

              By the way, I don’t mean to be obnoxious on this issue. I just bristle at anything that sounds like holding women (of which I am one) to a different standard.

              1. Chris

                I’m not trying to present a standard. And I’m not really talking about work-life balance.

                Research done on this issue reasonably agrees on a certain set of observations that hold true in neo-liberal economies and employment markets. Namely, single women have almost no wage discrimination effects when compared to single men. Married women have small wage disparities. Women with children have large wage disparities that get larger the higher up the skill ladder one goes. Men with familes in contrast have a slight net positive (the residual family wage.) Multiply that over other fringes like pension/d eferred comp and you end up with a big “mommy penalty” economically speaking. The incentive for women to return to work after motherhood and weaning is that much lower in the higher skilled positions because the disparity is so much greater. Yet women more than men are getting college educated at a higher rate. This makes for a public policy quandry. America subsidizes college educations both at state level and through federal loan programs because the economic net of highly skilled workers has been positive. But now we face a situation where by in some estimates, 1 in 5 highly skilled workers will drop out of the workforce. A lot of that is due to the economic cost of returning (being put in a mommy track job, being stuck at mid level etc. – though the point is taken that some of that is probably voluntary due to work life balance issues.) So why subsize the high cost of education if it isn’t being used to produce economic growth for the whole? We can’t bar childbearing aged women from applying to college. So the easiest fix is a better version of FMLA. In other employment markets that have faced the problen of massive amounts of high skilled highly educated workers opting out – they found a rational fix to mandate universal paid maternity and paternity leave, flex time arrangements for parents by statute and equal pay enforcements that all have the effect of coaxing parents back to the workplace (though in the US we’re still really talking women since there is usually a wage premium for men with children.) They end up, in places that try them, as good ways to not waste money on the subsidized cost of higher ed and professional school.

                And someone made the point that some large employers already do this as a means of retaining highly skilled talent – which in most US cases means highly skilled women and mothers though I guess more and more fathers might fit into the category on the work-life balance issue. Wage data doesn’t show that but more qualitative factors might. But these large employers haven’t been enough critical mass to make a dent on “mommy penalty.” But we as a nation should really think about doing that for the sake of global competitiveness. It will probably be left to the states I’d imagine like the california and NJ programs. Theres not great “non recession” data on those programs yet but in places in europe and even japan where this has been studied – both not losing the money on the subsidy of education and the benefits of retaining high skilled workers in the economy has been quite noticable.

                So I’m not making a fairness or humanitarian argument. Its a straight up economic one that other nations have faced. But with women overrepresented in both college degree attainment now AND low wage jobs – somethings gotta give. We can’t afford to have highly skilled women drop out of the work force or get sequestered or self sequester at the lower to middle ends. Individual firms may not like new regulation but its a labor market problem that has to be dealt with in some way.

                As an aside: the Evil HR lady simply states that men at the higher ends of the wage scalebhave work life balance problems. That may well be true, but I would caution against using evil HR lady’s anecdata as a basis for public policy.

              2. Chris

                And I just thought of one study off the top of my head now that found the opposite was true actually. That kind of study has crappy unreliable measurements compared to wage data – but the males with families at a certain level of a firm worked less hours than comporable females. Doesn’t speal to the whole population – but still.

            2. Ask a Manager Post author

              Her point is more that those disparities exist because of the choices that women (and sometimes men) often make — trade-offs that they intentionally choose. Yes, if you take significant time off the career path or you start to refuse to work the long hours others at your firm put in because you’d rather be home for dinner with your kids, that will often affect your salary/promotion potential. There’s nothing wrong with choosing that, but it does have trade-offs (both good and bad) that come with it. But maybe I’m misunderstanding what policy changes you’re advocating?

              1. Laura L

                I think Chris is looking at it from a societal perspective. Yes, individuals are free to make their own choices, but those choices are still influenced by larger societal factors and have consequences beyond the individual and her family. So, maybe it’s not an entirely free choice for a woman to stay home with her kids, maybe it’s related to the support available to her. Additionally, Chris is arguing that when women drop out of the labor force or reduce their work hours, society loses a lot of skilled workers and that decreases economic output for that country. Therefore, it’s smart, from an economic perspective, to support policies that allow mothers to go back to work sooner after their child is born and, therefore, not lose as much income or fall as far behind in their jobs/careers.

                Also, in an ideal world, those policies would apply to men AND women and would lead to more men taking a larger role in childrearing responsibilities.

      1. Jaime

        Not being a market expert or economist, this may be too simplistic but …. there is no free market – labor or commercial – in the US. It’s a free market in the sense that you don’t have to be from a certain class to do business, but free in the “sink or swim with no unfair or undue outside influence” does not exist. The governments protects certain industries from failure, businesses lobby for laws and regulations that make their jobs easier or give them market advantages, there are regulations to protect the consumer and environment, etc. In the absence of a free market, I feel like the idea of the market setting the real price of wages, consumer products, etc is flawed. Sure, it’s happening and to a large extent, but it’s not the only factor and I roll my eyes every time someone spouts off some justification for rampant greed as being “what the market will bear.”

        1. Chris

          Pretty much all public policy is a set of regulations to influence choice. I’m not really so ideological, but when far right pundits get on the air and complain about social engineering in the tax code, they’re pretty much right. Taxes raise revenue. The tax code is all social engineering (or policy choice to put it more kindly.) We give a mortgage interest deduction because we want people to own their own homes. We give a child tax credit because we want to give people an incentive to have children. (If we think we got labor market problems coming in the future with the mass exit of highly trained workers – look at poor Germany! Their population replacement rate is such that in 30-40 years their economy will be non-existent without massive in migration of workers. They have to fight to retain every worker or they’ll be incalculably screwed.)
          Similarly it annoys me when liberals jump on GE for not paying corporate income tax. In the year they are angry about, they took a HUGE credit for wind power turbine manufacturing. But…we WANT wind power don’t we? So yeah – I totally agree there is no such thing as a totally free market. We are always setting up one policy over another. And at some point we’re going to have to deal with the high rates of exit of highly trained/highly skilled women. Can’t force them to work, but you can align incentives to make them less likely to drop out compared to male counterparts.

          America, comparatively speaking, has pretty deregulated labor markets though. The only real “industrial policy” we’ve ever had was the national promotion of collective bargaining from the 1930s to the 1970s. The New Deal coalition wanted to end the prospect of massive strikes and what they’d remember as the era of labor wars in America. People think we have a labor movement because kids were getting killed at work and people were working 18 hour days. That was all pretty much gone by the time we instituted our Union policies though. We have a labor movement because the government and industry got really sick of massive work stoppages that would shut down entire industries. Imagine being a steel plant owner and watching the mine owners association arm airplanes and bomb striking coal miners. Really really poor for business. So the government decided to incentive labor peace by rationalizing a collective bargaining process. The wage standard was set by the monopoly union wage and the union threat effect brought non-union firms up to that standard. But those policies assumed a Keynesian world order. The preamble to the NLRA even states that the purchasing power of the working class is of paramount concern and by having regular people able to buy cars and houses and junk for the kids – that’ll be good for the economy.
          Without the preference for collective bargaining – US labor markets are pretty deregulated compared to the rest of the world. Deregulation proponents would argue that lowering the cost of goods and having efficient allocation of capital (ie put your 401k back in investment markets for the expansion of efficient business) is better for workers because they can have the same increase in quality of life at much lower cost than under the collective bargaining policy. Your pay can be less if Wal Mart is the standard cost of consumption.

          Some european countries use tripartite bargaining with government, industry and workers as equal parties to set national wage standards. We toyed with that in 30s with certain industrial boards but it never took off. BUT – in defense of free markets – the wages set in tight labor markets, with the right of employee exit under the employment at will doctrine is really just as good at setting a high wage and a high cost of living as Unions are. In times of low demand for labor however- feedback tends to rear its ugly head and the unregulated labor market starts to fail. “Good” employees that should be reallocated to “efficient” and growing firms (or starting new ones where there is a market need) don’t get there because security fears cause job lock (and there’s some evidence – though very mixed – that firm provided health insurance cause job lock too.) Job lock is essentially a free market failure and explains why its so hard to find good help with so many people sloshing around the labor markets.
          I guess all I’m saying is that we fix market failure through policy. And left on their own – markets do fail. Often. The invisible hand actually sucks at its job. Most of the study of neo-classical economics is studying how various markets fail in epic and dramatic ways. LOL. (Boy that mortgage bubble was a GOOD one!)
          Yeah, I’m the idiot that actually went into an graduate program with the sad focus of labor econ. But people don’t hire labor economists anymore unless its at a university to teach more sad grad students labor economics. No one does a lot of integral calculus in the real world. But I did do collective bargaining and HR operations modeling for 10 years – so I did have to live there for a while too.
          On the FMLA issue, I really can’t wait to see NJ and Cali’s good data when the labor markets get back to competitive. Because highly skilled women opting out has all the makings of an epic market failure. We can see it coming, but like a lot of things in the US, our attachment to totally “free” markets means we probably won’t do anything about it until its a full blown crisis.

    4. Mike C.

      Plenty of nations have protections like these, and businesses are able to flourish just fine. Germany, Great Britain, Australia and Sweden come to mind in fact. It’s cool if you don’t like the regulations, but I don’t think it’s fair to say that they wouldn’t work when they clearly work in practice.

      And yeah, I do compliance documentation as well. First for food safety and now I’m in aerospace.

  13. Pamela G

    Wow, I’m so glad I live in Australia! I’d like to point out that my answers to the following come under “I’m pretty sure that this is the case (from word of mouth, newspaper articles etc)” rather than “this IS the law.” :P

    #1. Same in Oz – you can’t discriminate on those grounds, but I don’t think there is the same stigma attached to the questions in job interviews, they’re seen more as icebreaker questions I think.
    #2. Same in Oz
    #3. Your boss is not allowed to bully you in the workplace for any reason – pretty sure we have Workplace Harassment laws which cover just about anything nasty that goes on in the workplace.
    #4. Employers in Oz are generally required to provide two to four weeks of annual leave (except possibly fast food and other casual places, I think).
    #5. Your employer cannot substantially change the details of the job you were hired for – many people have sued successfully for being sidelined from their original role after returning from maternity leave, for example.
    #6. I think employers can ASK you to attend things out of work hours but unless it’s in your contract, it’s optional only (but would probably build good-will etc).
    #7. Yes breaks are protected or expected in nearly every job industry in Oz – there are laws stating the maximum number of hours you may work before you HAVE to take a break (and a minimum number of hours you must be off-site/resting before you are allowed to recommence work for your next shift).
    #8. You can absolutely sue if your boss makes an offensive/discriminatory remark to you. Again, you’d have a better chance if you could prove a pattern of behaviour rather than a once-off, but it doesn’t have to be severe and it doesn’t have to only be because of a protected class (race, sexuality etc).
    #9. Most jobs state in the contract how much notice is required before an employer can fire you. However, nothing stops an employer from saying “Here’s your two weeks’ notice, here’s your pay for the next two weeks and here’s the door.”
    #10. You must absolutely have a justifiable reason for firing someone in Oz – we have Unfair Dismissal laws which are pretty strict. I often see articles in the paper where a business has fired an employee for misconduct, for instance, but because they fired them by text message (that one was an apprentice hairdresser) or did something else not quite in the right way, the employee sued, won a substantial payout and the right to get their job back.

    I think what it boils down to is that in the U.S., it seems like the majority of laws are designed to protect the employer. In Australia, I think the majority of our workplace laws are designed to protect the employee. As an employee, I tend to like it that way!

    It also sounds like it is relatively uncommon in the U.S. to have a contract? Here it’s quite standard to have a long contract which covers everything from time off to pay increases to annual/parental/sick/bereavement leave to privacy clauses to amount of notice required on either side to sever the contract etc. etc. So company policy is usually clearly laid out in the contract you’re given to sign, which is a good thing.

  14. Laura L

    I commented at US News, but thought I’d also post here:

    I’m a regular reader of your blog, so I didn’t expect any of these to surprise. 9 of them didn’t, but 1 did.

    “Myth: Employers must provide you with breaks during the workday. Fact: No federal law requires that workers receive lunch or other breaks. Some states require breaks, but most do not.”

    I’m not surprised that there’s no federal law for this, but I thought that most, if not all, states had laws requiring a 30 minute unpaid lunch break if you were working consecutively 5 or 6 hours or more.

    Apparently, I’ve just been lucky to live in states that had this law on the books. (Not sure if DC does, but I (fortunately) get breaks at my job, which is good.)

      1. ChristineH

        I too had thought breaks were required for every certain # of hours worked. I’m in New Jersey, which is nowhere on that list Alison posted. Granted I’ve never had any *official* break time (just lunch), but everyone I’ve worked for has always been flexible with allowing reasonable breaks.

      2. Laura L

        Thanks. 3 of the 4 states (IL, WA, MA) I’ve held full-time jobs in have a required 20 or 30 min per X amount of hours worked.

        Although, I’ve gotten 2 15-minute breaks per day at every full-time (and some part-time) job I’ve had, so I’m surprised that fewer states have laws regarding breaks.

        1. Ask a Manager Post author

          Keep in mind that lots of employers do things that they’re not obligated by law to do — breaks, warnings before firing, severance pay, paid leave, etc. They do this because it’s the right thing to do and/or because it makes it easier to attract and retain good employees.

        2. Wes

          the odd’est thing here in WA I have run into is the unsaid 12hr / 11.5hr rule.
          at two of the jobs we never worked over 12/11.5 hrs (I heard we would be entitled to another 30 min “lunch”) so the day was done at that point, plus the second shift was usualy arriving at that point.
          one job we worked with union employees and their contract let them work 11.5 and get paid 12 were as we only were paid for 11.5 (we had a 30 min lunch break, hence 11.5)

          one was a four day a week job with three non together days off.
          and the other was three shifts with lots of overtime around summer (chicken processing plant).

  15. Anonymous

    There are also some professions that have mandated breaks for safety reasons – pilots and drivers are the two I can think of, but there could very well be more.

  16. Anonymous

    I read this blog all the time and have to admit I was shocked by the “…you can’t ask about disabilities”. We hired someone in our department that is missing an arm, part of the job she is doing requires typing, does this mean we couldn’t ask about the missing arm even though it is quite obvious during the interview? I wasn’t hiring for the department at the time so I don’t know if she was asked. She has been doing the job for several years and does a perfectly fine job but I have to admit I probably would have asked…

    1. Ask a Manager Post author

      You can describe the duties of the position and ask, “Are you able to perform the essential functions of this job with or without reasonable accommodations?” But you can’t say, “What’s up with your arm? How would you type?”

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