This is a post I should have written a long time ago.
I get a lot of letters from people about something their workplace is doing that’s likely illegal. They’re often wondering what their next move should be: Do they have to go straight to a lawyer and file a lawsuit, or report the employer to a government agency?
While that’s certainly your prerogative if your employer really is violating the law, it’s not always the best move to get you the outcome you want — assuming that your goal is to get the situation resolved and stay on good terms with your employer. Taking legal action tends not to accomplish that second objective. People tend not to be comfortable around other people who have sued them or threatened to sue … and while you may think you don’t care about your manager’s comfort level, it matters very much when it comes to how comfortable your own future is with that company.
So over at U.S. News & World Report today, I talk about a better first step when you want to bring a legal issue to your company’s attention: straightforward conversation. It doesn’t always work, but it’s where you should usually start. You can read how to do it here.
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I’m quite surprised by how often when employers break the law, it is because they legitimately don’t know better. (Obviously there are also some crazy places that just don’t care.)
Someone I know has been mulling over how to deal with an illegal action recently (which Alison provided helpful information on, thank you!), so I’m going to forward this on.
Curious though…how do you decide when something illegal that likely won’t happen again is worth taking even this kind of hyper-reasonable stand on?
It depends on what your goals are. Do you care most about having a harmonious relationship with your employer? Do you care most about making sure it doesn’t happen again (to you or someone else)? Do you care most about the principle of the thing? You’ve got to be really clear about what outcome is most important to you, and what the likely trade-offs are for each option. (For instance, if you say nothing, you get harmonious relations but risk it happening again. If you speak up, you might ensure it doesn’t happen again, but in some offices you might affect the way you’re treated in the future. You’ve got to be clear on these trade-offs and decide what’s most important to you.)
When I was fresh out of college, I worked at a company that had twenty-two pirated copies (I knew it was pirated, because the boss said so, and when loading the software, a message on the loading screen boasted as to who “cracked” it) of an expensive 3D modeling software on their machines (along with pirated copies of other software), and the company was making a profit from the use of the pirated software. After I was able to move on from that company, I reported the company to the maker of the software. I don’t think anything happened, but at least my conscience was clean.
My bf was an IT guy for a local non-profit tv station. Someone reported the pirated software that his predecessor put on all lab computers. My bf was scolded about it, so he submitted a purchase order for 30k to be compliant and it really pissed off the board members, because they suddenly had to tell him to buy it, remove the software and risk membership, or keep the pirated copies. My bf was told to remove the pirated copies by his boss, before the board told the boss to keep those versions to avoid paying 30k. So then they had to buy the 30k of stuff because my BF said he wouldn’t break the law the way his predecessor did and noted that his review said his complacency of keeping them was morally wrong. It was amusing, since his coworker was trying to get my bf fired for the software, and then the board got so pissed that someone complained that they ripped the boss about the 30k expense that wasn’t an issue before the complaint.
I was once in a similar situation.
The company I worked for at the time was going to teach a class in the use of a product. I was asked – “can you get 30 copies of the manual?” Yes. At $40/per, that would come to $1200.
“No no no!” Huh? “Fill out a requisition order, send your copy down to our (internal print shop) and have them knock out 30 copies.”
I reminded the manager – “that’s a copyright violation. I’m not signing off on it.” The manager got angry – “I said, ‘OK whiz kid. YOU put your name on it, YOU sign off on it.”
Oh, that was different. I guess he found some stooge to sign off on it — but — knowing that this stuff follows you around if/when you get caught — the piece of advice I would give to ANYONE.
DON’T EVER DO ANYTHING ILLEGAL. Like the old joke – IF IT SMELLS BAD, FEELS BAD, TASTES BAD – It is bad. Don’t step in it.
The law of the street applies if the walls cave in – “every man for himself” …. don’t expect your boss or your company’s legal department to help you. Your boss will protect him/herself first. The company will do anything to protect itself.
My previous employer sends their annual tax statements to their donors every year as nonprofit bulk mailing. One year, after delivering the mailing to the post office, the postmaster later noticed that our postage check listed the mailing as being for tax statements, and he called to inform us that it had been mail fraud to send tax statements bulk – they had to go first class. He let it slide that time, since the mailing had already gone out. But he said if we did it again in the future, we would owe a lot of money.
So, thinking I was doing my due diligence, I informed my department head and CEO.
They chose to ignore my concerns, and continue to send the mail illegally each year because they want to save on postage.
I have since left, but I hope eventually the USPS will accidentally open one of those 10,000 bulk envelopes that happens to go out on January 30 of every year.
Why didn’t you report this? It affects the rest of us that follow the rules, and there’s no way it would have gotten back to you.
Maybe because they cared about the mission of the nonprofit (maybe it was feeding the homeless or educating kids) more than they cared about enforcing the post office’s regulations for it. The post office has a system in place to enforce their regulations, it’s not a citizen’s responsibility to do it for them.
That’s really a terrible justification when plenty of non-profits are able to feed the poor, fund cancer research and improve the quality of the environment without having to break federal or international laws.
And frankly, if we are to have a functioning society, it is the responsibility of citizens to make sure it keeps working.
Eh, I don’t think we as individuals are under any obligation to report everything that is a violation of state or federal law merely because it’s illegal. We’re entitled to our own opinions about what is right and wrong, and to act on those; and even from a legal standpoint, there’s no law requiring disclosure (and there certainly could be).
Right. I have called it in when I’ve seen a car that was weaving all over the road and was an absolute hazard. However, if I called in every license plate that was going over the speed limit I would do nothing else on my commute.
Is someone getting hurt or is someone likely to get hurt? That’s the line for a lot of people.
I didn’t report it at the time, for fear of losing my job. But I would definitely consider reporting it now.
Actually a quick check of a postal service FAQ says you cannot use bulk mail to send tax statements for tax purposes. HOWEVER, if your non profit sends those tax statements to “encourage the donors to give more money,” It is legal to do so.
So if it’s Hey Mrs Jones you spent 200 bucks with us, here’s the statement for your taxes, no go. But if it’s Hey Mrs Jones, here’s your statement, you spent 200 bucks with us this year how about spending more money next year? Here are our new projects…
It’s highly possible that if the non profit has good lawyers, they KNOW this. And those statements were never illegal anyway.
We just sent plain old tax statements pumped out of our database system with no further requests for money. It was definitely mail fraud.
For what it’s worth, that doesn’t sound like mail fraud. Mail fraud is using the mail to defraud someone of money or property. It’s just a violation of a postal pricing regulation.
What about using something like ComplyLine, if your company has it? It’s an anonymous phone call, so you can’t (hopefully) be identified.
I can’t imagine anyone being foolish enough to think that continuing to work at a company you have either reported or sued is a good idea.
You’d think so, but I regularly hear from people who think they can.
I’ve known people like that, too. With those people, I got the impression that it’s kind of a dominance thing. They don’t care about a harmonious workplace; the idea that their mere presence in the office could be a big FU to the employer made them giddy.
I’m glad I no longer work with such people.
I don’t think it’s fair for you to characterize the motives of people who wish their employers would just follow the law in this way.
Maybe you had a few coworkers who were this way, but many of us have seen some pretty terrible abuses of the system and the way it prevents people from even reporting.
There are people on both ends of the spectrum. A Bug! says she’s seen people giddy about the idea that their presence could be an FU to their employer; I’ve seen those people too (and received letters from them). That doesn’t mean that everyone who wants their employer to follow the law falls in that category — far from it. But you can’t say they’re not out there. They are. There are jerks everywhere, at all levels of power, even the low ones.
I took Bug’s comment to mean “all”, not “some”.
Sorry again, the intent was to mean “all the people I have personally known who fit the circumstances being discussed”. For context, I’ve worked in some highly dysfunctional workplaces. (Call centers, amirite???)
Thanks for the clarification!
The best FU you can give to an employer, I’ve learned, is to go on to a better situation elsewhere – and be sure to make that known not just to the employer but your co-workers.
I related the instance where I was on probation at a place, about to be fired. I found a job with a 30% increase, better benefits and opportunities. They tried throwing money at me to get me to stay – probably so they could fire me at a later time. Their big concern – others might follow me out the door.
Sorry, I didn’t mean it to be a blanket statement on all people who are in a position to report their employer for an infraction. I know there are many people out there who struggle with the decision to report or not report. But I don’t think many of those people would expect their employment to continue on as normal if they opted to report. Even if the employer can’t legally retaliate, that kind of thing inevitably alters the work environment for the worse.
The only time I considered suing my employer, I spoke with my attorney about it, and he said I would almost certainly be fired as soon as I started proceedings. I was naive and thought I couldn’t be fired because it would be considered “retaliation.” I decided not to sue them.
I’m foolish enough to think that and I’m on the employer end. Sure I want people to resolve things internally. But if I see they’ve legitimately been wronged and tried to resolve it internally without success- that’s a failure on my end and I’m glad to use a settlement or an outside investigation as a learning lesson. And no I won’t hold it against them-and I’ll even keep an eye on them to make sure others are doing the same. I’d rather deal with one court case or whatever now than have to worry continually about whether my folks are doing the right thing. To boot, its cheaper in the long run to take one on the chin now and get the problem fixed.
Not to mention that various regulatory bodies tend to like this kind of “operating in good faith” and often reward it with reduced fines.
It’s actually quite amazing what companies can get away with and not break the law. Not to mention all the things that we, as employees, think are required but aren’t actually.
Excellent article!
Overboard employee litigiousness is a significant reason employers cite in their reluctance to hire, as it’s a hidden potential cost of employing people.
Most evidence I’ve read says that reluctance to hire is due to a lack of demand for the particular company’s services or products. This “fear of litigation” is completely irrational.
Wait, why is it “overboard” for an employee to try to assert their legal rights?
I took it to mean “overboard” as in jumping to a lawsuit instead of first trying to work it out directly, or making legal claims that aren’t exactly in the spirit the law was intended in.
Though I think there’s a humongous gap between actual risk and perceived risk. Just as it’s good to encourage employees to talk to their managers rather than leaping to litigation, it’s good for employers to be realistic rather than reacting to unjustified fears.
That’s a cop out. I’ve never once seen an employer sacrifice production or profits because they were afraid of hiring litigious employees.
What they should really be saying is crappy managers are a hidden cost of doing business.
I’ve seen maybe on one hand employees out of over 10,000 that were overly litigious. The truth is that nearly all employees don’t want to file a lawsuit. They just want their wrong righted. It’s when those issues aren’t resolved or are dismissed that they tend feel litigation is their only option. That’s a problem on the employer end. And that’s usually crappy managers.
Agreed, for the most the part. There ARE unreasonably litigious employees, but they’re not the norm.
It’s just like being a whistleblower when it comes to financial shenanigans. Your last day is that day when you blow the whistle, so be prepared to deal with that situation that follows, including a lengthy unemployment period.
I understand that it’s the reality of the situation, but it cranks me no end that people just have to put up with having their legal rights violated because if they try to defend themselves, they’ll lose their job and become unemployable. That’s so messed up.
Well, the whole point of my article is that you can often avoid it going that way, by instead just talking to your manager. Yes, that doesn’t always solve things, but an awful lot of the time it does, but people still don’t speak up, or don’t speak up in a way that’s likely to get it resolved.
Well. . . it can resolve it if the employer is interested in resolving it. But if they aren’t, then the employee has no options. My husband had a situation a while ago where he was paid hourly, not paid for holiday or vacation pay, and only paid straight time for hours over 40 in a week — that’s not legal. And he raised it to them and said “Are you sure that’s right? I don’t think that’s how the employment classifications work.” And they said “Well that’s how we do it, so there.” It was a crappy economy and I was due to have a baby in two months, so he had no choice other than to just put up with it.
It stung then and it still stings, and that was for a difference of about $2000 over a year. How much worse would it feel if the issue was illegal employment discrimination or sexual harassment?
Yep — there are definitely times when it doesn’t resolve it. But too often people don’t even have the simple conversation.
I agree, though, that it’s too bad that sometimes your options are fighting it and burning the bridge or just dealing with it. I don’t really know how it could be structured differently, though — I mean, there are laws preventing retaliation for this type of thing, but you can’t police all the subtle ways in which someone can be retaliated against, if that’s what the employer is like. (All the more reason to screen an employer thoroughly before accepting a job, if you have that ability, and to work really hard to ensure you have options so that you’re not at the mercy of a single employer.)
yeah, don’t get me wrong, I very much appreciate the “Wait, you DON’T have to just suck it up or else hire a lawyer! There’s a third option! And unlike the other two, it actually has a prayer of working!” article, because yeah, a lot of people don’t know that. I’m just griping.
I don’t think there is any other way of structuring things legally. It’s a shift that would have to come culturally — people would have to think “If you take steps to exercise your legal rights, you will likely become unemployable, and that is MESSED UP” rather than thinking “and that’s just the way it is.”
Just curious – have YOU ever been asked to do something illegal?
Or unethical?
If so, what was your reaction? I only listed ONE incident above – I’ve been in several in my career but handled them well .. and yes, I was willing to take a job loss rather than “play dirty pool”.
Advice my Dad always gave me about getting into a game of “dirty pool” (unethical/illegal behavior).
1) Do not tip your hand at playing dirty. You lose your advantage if the opponent picks up on what you’re doing.
2) Be careful who you choose to dirty up or sully. He may be better at playing dirty pool than you are. And if he’s never had to do it, he probably WILL be better at it than you.
Yep. Fortunately, never early in my career (at least not that I knew enough to recognize at the time). Later on, I had enough credibility (and, frankly, value) built up to push back and say no without repercussions.
It’s harder if you don’t have that, though.
You’re very lucky. I was in at least two of those situations, and pushed back, even though I couldn’t afford to do so financially. But morally – going along would have been morally bankrupt.
Tough decisions.
> only paid straight time for hours over 40 in a week
Wait, that’s not legal? I thought that the exempt/non-exempt only meant that a non-exempt employee had to be paid for working past 40 hours – but not necessarily that they had to be paid more per hour after 40 hours than they were paid for the first 40.
Federal law requires time and a half if you go over 40 hours in the week (unless you’re an exempt employee or in an overtime-exempt category).
Correct. And, the employee cannot ‘agree’ to break the law by accepting anything else.
“Well. . . it can resolve it if the employer is interested in resolving it.” Sure, but often the employer would be interested in resolving it if they knew. If they remain uninterested once they’re informed, that’s another matter, but it’s worth giving them a chance to fix the problem.
Yeah, I think the real dilemma comes in when you’ve approached your boss about it and he dismisses it. So now you’re faced with whether or not to go above his head (which he won’t like). I think that’s why employees sometimes go to an outside entity without exhausting all possible internal options. They figure if the boss blows it off that must mean the company doesn’t care and everyone is just going to get pissed. Or that by going above your boss’ head he’s going to get pissed so might as well go straight to someone who you know will do the rigt thing.
How timely! I just had one freelance project fall through because it turns out that the guy who retained me for his client was milking the contract budget for all it was worth. Seeing as how this was a project for a government agency, I’m debating (after the suggestion from a couple civil service friends) whether or not to file a Whistleblower report for the mis-use of public funds.
And if that wasn’t nutty enough, I also just got a smaller freelance job where I was supposed to be a 1099 contractor. Except that the entire time I was basically working on site for this client and under 100% of their direction. Which if I’m not mistaken is the example used for determining W-2 versus 1099. If you have somebody as a 1099 but are controlling/directing their work and have them on site, that’s *not* a contractor and you’re therefore misusing the 1099.
1) Decide if you want to stay. If not, call a lawyer immediately. Note that by “immediately” I mean “right away, before you mess up your case.” If you are theoretically willing to go through the trouble of quitting and/or suing, you may as well win; don’t ruin your case by going alone.
And seeing a lawyer doesn’t mean that you’ll quit. I’ve advised more than a few clients that they would be better off staying. But it prevents other doors from closing.
2) Do you care most about the principle of the thing, or do you just say that because it sounds better than saying that you’d like to get money because your employer made an expensive mistake? Are you sure, really? REALLY? Principles are an economic factor like everything else: just like any other position, standing firm on principles requires tradeoffs in other areas. Usually money.
The vast majority of people who are “acting on principle” are, in reality, simply unaware of the tradeoffs or are too embarrassed to say that they want money. moreover, most folks are realistically too poor to afford to fully act on their ideals; acting on principle isn’t an option when you need money to live.
Also, attorneys work for money, not for principle. Sure, we take occasional pro bono or low bono work but those tend to be really extreme or very unusual cases, not basic cases.
3) Horrible to say, but sometimes it’s best to sit tight and sue later. An attorney can help with that.
With the caveat on your #3 that you lose your rights to in some situations if you sit tight very long.
Attorneys also work “on contingency” – but only if you have a solid enough case. Typically – the fees are 25 percent of the settlement – 33 if they have to go to court.
Some of you may have seen Erin Brockovich – where they took 40 – but that was a high risk case, and a lot of research had to be done on the ground (literally) with no guarantee of a victory.
Of course you’re going to say call a lawyer immediately. But often people can resolve things without involving a lawyer.
What about when it’s a typical, industry-wide practice? I worked in early childhood ed for six years, from crummy places to classy, and every single one required unpaid overtime from hourly employees. “All teachers make sacrifices. If you don’t like it, you should be in a different field.”
There are other reasons why I got out, but that was one …
Aren’t teachers generally exempt?
I don’t know myself if they are exempt, but I have known many teachers and they all do a lot of work on their own time.
Yes, but that’s true of many exempt positions. If teachers are exempt (and I think they are), this wouldn’t be a legal issue.
Not preschool teachers.
They can definitely be exempt, especially if they have specialized degrees. There are grey areas in the younger age groups, though, and how some institutions use the word “teacher. The DOL says this: “Bona fide teachers in preschool and kindergarten settings may qualify for exemption from
the minimum wage and overtime pay requirements as “professionals” under the same conditions as a teacher in
an elementary or secondary school. Teachers are exempt if their primary duty is teaching, tutoring, instructing
or lecturing in this activity as a teacher in educational establishment. It should be noted that, although a
preschools may engage in some educational activities, preschool employees whose primary duty is to care for
the physical needs for the facility’s children would ordinarily not meet the requirements for exception as
teachers under the applicable regulations.”
Perhaps I should specify: none of the teachers at any of the places I worked were classified as exempt.
The tricky bit, of course, is that they’re not likely to get into trouble for wrongly considering anybody to be nonexempt, and if you were categorically nonexempt in federal terms, your employer’s category isn’t likely to matter much and the OT thing won’t hurt them. Where they’ll get into trouble in a case like that is if their hourly paid but exempt employees didn’t get proper exempt pay for a full week if they took off a part week.
My guess, though, is you’re talking about a place that was basically daycare, as described in the quoted paragraph, and just used the term “teacher,” and that you’re right that you should have been paid O/T.
I took a business law class once upon a time and we covered whistleblower cases. My prof all but told us to basically never be whistleblowers and I agree with him. Laws protecting whistleblowers in Canada and the U.S. are pathetic. What’s more likely to happen is the company will essentially get out with a slap on the wrist while you’re labelled as a “problem”. Even if the employer isn’t allowed to retaliate against you, you’ll have to quit eventually due to the bad relationship (no promotions, no good work, they move your office to the basement, etc.). Beyond that, no employer will want to hire you, so good luck finding a job. Oh and lets not forget the years of litigation and lawyer fees you are pulling yourself into. Personally, I only see myself blowing the whistle in a situation where I think LIVES are at risk. Otherwise, I think it’s best to just quit and find a job with a place that has a stronger moral compass. You’ll save yourself some heartache that way.
Of course I’m talking about more serious things.
This is a different law + employer question, but it’s one I run into more often in my line of work than the white-collar crimes.
What do you do when a person you work with (or work for, or supervise) breaks the law toward you in a rather more direct, less employment-related way (while at work)? Mainly I’m talking assault, but also less dramatic things like theft, vandalism, or verbal threats.
All my employers have heavily encouraged people to not report such incidents to the police. I’ve always felt that seemed very wrong – that they’re just afraid of bad headlines or reporting police statistics, when really they are just by-standards that shouldn’t be involved.
At what point do I tell the employer to butt out, and at what point do I respect their preference to handle things internally? If a person steals my lunch, it seems reasonable not to make a federal case out of it. When a co-worker physically assaults me, I feel the company is out of line in trying to get me to not report it to police. That still leaves a huge middle ground where I am at a loss over when it should stay internal and when I should call the cops.
Wow — what line of work are you in where this is normal?
Yep, employers don’t like it when employees file police reports against each other or sue each other. No employer wants the police conducting an investigation in the workplace. Their ultimate interest is the business, not your well being. You just have to understand that’s almost always going to be their preference. Of course the exceptions are the extreme things or things that more directly impact the business. But in your case its hard to say without knowing more details. I don’t ever think there’s a clear line either in your personal line or at work. It all depends on things like the severity, frequency, monetary impact, and your tolerance level. This is really one of those decisions where the extremes are easy, but everything else is really a personal decision.
What do you do if you know a new staffer is using a coworker’s login to process payments? This is with the coworker’s knowledge (as well as their supervisor). All because the new staffer hasn’t finished his/her training yet and can’t officially get access.
I believe this is against university policy. It would be somewhat different, although still against policy, if the staffer was just looking up information but he/she is actually processing payments.
Is this one of those things that should be reported? Or just ignore? As far as I can tell, this has happened at least a few times in recent years (every time they hire a person to fill that position, the new hire uses the previous employee’s login until they get their own access). And at least once, the central office did question why there were many erroneous transactions being processed by someone who has been processing these payments for a long time (obviously, it was because the new hire was making mistakes, but they didn’t tell the central office that).