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10 things your employer might not tell you.

The ABCs of surviving in corporate America in the '90s are simple: Be flexible. Be prepared. Be informed. But nowadays, it is particularly tough for even the savviest of professionals to embrace this credo. In the past, doing a good job was enough. But today, if you want to keep your job, you must also be a skilled negotiator. There's no doubt about it, the rules of the game governing corporate behavior are changing.

Understanding your rights and limitations in the workplace will help protect what's rightfully yours. Adopting a "let's make a deal" attitude regarding your employment contract, benefits package and job responsibilities can also help you shape the conditions under which you work. Your company's employee handbook, as well as federal and state legislation, outlines your rights and restrictions regarding benefits, privacy and job security; but the rules are constantly being rewritten.

To help you keep up with the changes, BLACK ENTERPRISE invited experts to discuss 10 workplace issues you should know about:

Q: We're pregnant. What are my employee rights as an expectant mom or dad?

A: Since the beginning of the year, great strides have been made in this area of employee benefits. And the most sweeping changes to date are connected with the newly signed Family and Medical Leave Act, the nation's first federally mandated parental and family leave policy.

Only 13 states and the District of Columbia now have any type of parental leave policy on their books. And nationally, maternity leave provisions have been set by companies' individual disability leave stipulations. But with the implementation of the act as early as Aug. 5, employees working for companies with 50 or more on staff will be eligible for the following:

* Up to 12 weeks of unpaid leave to both sexes during any 12-month period for the birth or adoption of a child or the placement of a foster child. This time must also be offered for your own care or the care of a seriously ill child, spouse or parent.

* Full health care benefits throughout the leave, just as if you were still working. But, while your boss is required to provide you with health coverage during your leave, "he may be able to recover any premiums he paid on your behalf during that time should you decide not to return," says Patricia DiLieto, research associate at A. Foster Higgins Inc., a New York City-based management consulting firm specializing in employee benefits.

* Reinstatement to your former position, or its equivalent, once your leave ends.

But there are stipulations. "Your employer can require you to apply any accured paid leave--vacation, sick or other personal or paid time--to all or part of your leave," says DiLieto. Also, an employee is covered only if he or she worked for at least one year and for a minimum of 1,250 hours during that one-year period (about 25 hours per week) before requesting a leave.

If the federal law doesn't apply to you because of your company's size or your length or number of hours of service, you may still qualify for some leave under a separate state law. Contact your state's Department of Labor for details.

Q: I think my employer has invaded my privacy. How can I be sure?

A: In an effort to protect their property and competitiveness, some employers-- though it's not often discussed--are crossing a fine line and invading the privacy of their workers. Monitoring calls, searching lockers or scrutinizing computer files are just some of the most flagrant abuses. Wherever you work, the general assumption should be that Big Brother is watching. How you handle this depends on your company's policies, your job responsibilities and the circumstances surrounding the incident.

Generally, it's within an employer's rights to monitor business-related phone calls to or from the office. Employers "can also conduct office searches if there's a reasonable basis for suspecting a worker of wrongdoing. However, the search should be confined to nonpersonal areas of the office," says Steven Mitchell Sack, a New York City-based labor attorney and author of The Employee Rights Handbook: Answers to Legal Questions from Interview to Pink Slip (Facts on File, New York, $29.98, 800-255-2665). Company documents, equipment and the office itself belong to the employer and can be searched at any time, he adds.

Who's to say what's private? It's the employer's responsibility to clarify what is and what is not company property at the time you are hired or equipment is issued.

Public employees (government workers) are also protected by the Fourth Amendment, which guards against illegal search and seizure. Employees in the private sector must rely on the common law of reasonable expectation of privacy as a defense against illegal office searches. However, if a private employer suspects an employee of theft or other criminal offenses, a law enforcement agent should be requested to carry out the search. Once this action is taken, the private employee can then invoke the protection of the Fourth Amendment.

"Reasonable expectation of privacy means that you are told that lockers or other employee property [i.e., desks, file cabinets, computer files] are subject to inspection at any time," explains Darrell S. Gay, managing partner of Gay, Maher & Brown, a New York City law firm specializing in labor and employment issues.

Should your employer be remiss in respecting your privacy, advises Sack, "you may have a strong case [for bringing suit], especially if you were wrongfully fired, placed on probation, suspended or given an official reprimand after your search."

Q: Can I be denied employment or be fired for having bad credit?

A: In theory, no. In practice, quite possibly. Our credit-dependent society increasingly measures your trustworthiness, responsibility and worth by your credit rating--and the workplace is no exception. Many labor law professionals maintain that there's very little you can do to keep employers from obtaining and consulting your credit records when deciding whether to hire or promote you, or even keep you on the payroll.

However, this level of scrutiny may apply more to job applicants than to already-hired workers, and even more so to employees of firms where the potential for embezzlement is great (such as financial institutions). Where you work, your responsibilities and your level of authority are usually the biggest factors in determining the importance of your credit rating.

Some safeguards do exist. "The Consumer Credit Protection Act of 1973 prohibits employers from firing workers whose earnings have been subjected to a wage garnishment arising from a single debt," says labor lawyer Sack. Yet, there are no provisions on the books protecting workers after subsequent garnishments.

If an employer chooses to include bad credit as a basis for dismissal, it should stipulate that in its written policy, explains Sheila Clark, workplace diversity programs manager at Dow Jones and Co. Inc. in New York City. "Without a written policy, workers would be unaware of the rule and could therefore have legal recourse," she says. It's possible that your state has enacted laws giving workers additional protection in this area; check your local statutes to be sure.

Q: Can I keep my health insurance after leaving my job?

A: Because of the current revolving-door nature of employment, health insurance continuance has become a burning issue for many of those who are out of work. The Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA) protects employees facing the loss of their jobs.

If you work for a firm with at least 25 employees and you leave your job for any reason (except gross misconduct), you can generally retain your employer's health care plan--at your expense--for up to 18 months. Upon the death, divorce or legal separation of the covered employee, the benefit coverage period is 36 months for spouses and dependents. Employees have 60 days from the date they receive notice that their group coverage has been terminated to elect continued coverage under COBRA.

"Since your employer can charge you the full premium cost of coverage, plus a 2% administrative fee, the cost of continued coverage may be prohibitive, especially if you're between jobs and not drawing a salary," warns benefits expert DiLieto. Chances are, however, that any individual policy you purchase on your own would cost even more. And if you're pregnant or have an existing medical condition, there's the risk you'll be denied independent coverage altogether. So a safer bet might be to pursue continued coverage under your former employer. You can call the Pension and Welfare Benefits Office of Assistance (202-219-8784) for inquiries regarding your own specific case.

If your employer has less than 25 employees and isn't subject to the COBRA law, you still might be able to continue coverage or convert to an individual policy under your state law. Many states, including New York, California, Florida, Texas and Maryland, have such provisions. You can call your state's insurance department to confirm whether or not you're eligible for continuation or conversion coverage.

Q: What can I do about an unsafe work environment?

A: Plenty, but be ready to deal with an enormous amount of red tape. The good news is that workers have benefited from legislation governing workplace health and safety. Since the passage of the Occupational Safety and Health Act of 1970, private employers have been held accountable for maintaining a reasonably safe and healthy work environment for their employees. The act's broad scope doesn't specify the type of danger covered or limit the "workplace" to an office or factory. Instead, the act mandates that safe conditions exist wherever work is officially performed for the employer.

The Occupational Safety and Health Administration (OSHA), the federal agency charged with enforcing the law, oversees employee complaints, performs site inspections and ensures that no complainant is subject to retaliation, demotion or loss of work or benefits because of his or her complaint. Some states have passed additional OSHA-approved plans that are even stricter in their compliance and enforcement standards than the federal law, according to OSHA spokesperson Akio Konoshima.

If you think your work environment is unsafe, make sure your manager or the appropriate office representative is aware of the problem. Since there's strength in numbers, "you'll increase the chances of a complaint getting a quick and effective response if it's presented on behalf of a group of employees," according to Dan Lacey's Your Rights in the Workplace (Nolo Press, Berkeley, Calif., $15.95). Should the danger persist, "you or your union representative can file a complaint with your nearest OSHA office," advises Konoshima. Offices can be found under the Labor Department listing in the federal government section of your local telephone directory.

Q: How can I negotiate restrictive clauses in my employee contract?

A: Restrictive clauses or covenants are provisions in your employment agreement prohibiting you from working for a competitor once you leave the company. These clauses also restrict you from soliciting and servicing your former employer's clients. According to labor lawyer Sack, these clauses can also restrict you from starting a business or forming ventures with your former employer's competitors when you leave the company. In addition, you may be prohibited from using confidential knowledge, trade secrets or other privileged information learned at your former job.

While such provisions are sometimes unenforceable, they're often legally binding and can seriously limit the scope of subsequent employment. An individual with a written contract has a big advantage over one who doesn't, says Darien A. McWhirter in his topical book, Your Rights At Work (John Wiley & Sons, 2nd Edition, New York, $14.95). Therefore, your best defense is to carefully read and negotiate pertinent parts of your contract before signing it. Rarely are all stipulations etched in stone.

"Always get a copy of the agreement after it's signed and keep it for future reference," says Sack. Failure to do this might make any negotiations null and void if you can't document the terms of your agreement at a later date.

Q: What questions can I legally refuse to answer during an interview?

A: Title Vll of the Civil Rights Act of 1964, as amended, makes it illegal for an employer to ask about an applicant's race, age, disability, sex, religion or national origin. The law, which goes hand-in-hand with each state's individual discrimination laws, applies to public and private employers, labor organizations, employment agencies and training programs.

"Any question that could later be used to infer discrimination in the selection process should be avoided," says Charlene Moore Hayes, an employment law specialist and assistant director of personnel services at Purdue University in West Lafayette, Ind. "An employer found guilty of intentional discrimination can now face a jury trial, back-pay awards, wage adjustments and compensatory and punitive damages," for infractions, she says. Hayes offers the following list of illegal questions and requests you don't have to answer or comply with during the interviewing process:

* Please include a photograph with your application.

* How old are you?

* Are you a naturalized citizen of the United States?

* How did you learn to read, write or speak a foreign language?

* What is your religious affiliation, place of worship or parish, or the religious holidays that you observe?

* Are you pregnant? Do you have or plan to have children?

* Are you the head of the household or principal wage earner of the family?

* Do you have a mental or physical disability?

* How often will your disability cause you to be absent from work for treatment of the disabling condition?

* Have you ever been arrested for a crime? (Since arrests often end in acquittal, dismissal or withdrawal of the charges, employers may ask about criminal convictions.)

If you choose not to answer a question because you feel that it's discriminatory, explain that to the interviewer. If you're denied an employment opportunity for not answering discriminatory questions, your only legal recourse is to contact an attorney, your local chapter of the American Civil Liberties Union (ACLU) or a regional office of the Division of Human Rights or Equal Employment Opportunity Commission in your state. If you can prove that not answering discriminatory questions was the sole reason that you weren't hired, then you may have a case to sue for money damages and attorneys' fees. "If the employer can prove that--despite the discriminatory motive--the company wouldn't have hired you anyway, you may still be awarded attorneys' fees and the costs you incurred by bringing the action," says Hayes.

Q: Who in my company is privy to my health insurance claims?

A: If there's one area where workers staunchly guard their privacy, it's their health. In fact, the fear that their personal health needs will become common office knowledge sometimes prevents employees from taking full advantage of their company-sponsored medical benefits.

Most states ban the unauthorized release of an employee's medical information, and most reputable companies go to lengths to comply with those regulations. Exactly who has access to your health information, however, depends on the size of your company, the structure of its personnel department and the type of health insurance plan in which it is enrolled.

"If your company is enrolled in an insured plan [such as an HMO], the only parties with access to your claims are you and the insurer," says Phillip M. Randall, vice president, human resources organization development for Northern Telecom Inc., in McLean, Va. "The health care provider isn't obligated to share any personal information about any specific employee, and they don't," he adds.

When companies are self-insured (the employer subsidizes its own insurance and hires an outside insurer to administrate its claims), the procedure is somewhat different. The employer negotiates a level of confidentiality to be maintained between the company and the insurance claims administrator and absolves the claims administrator of any guilt should confidentiality be breached. While the employer doesn't personally administrate employee claims, the forms usually include a release allowing disclosure of the particular diagnosis to the company upon request.

Any inquiries about a specific employee's health must be made for processing purposes only. The information is then held in the strictest confidence by the company's designated benefits officials.

I was fired. What defense do I have against blacklisting?

Statements confirming that an employee was discharged or truthful comments concerning an employee's work habits aren't considered defamatory. However, remarks reflecting an unfavorable judgment of an employee's character, or offering an opinion alluding to incompetence or insubordination can be damaging and, thus, are actionable. "All states honor valid defamation lawsuits where slander is communicated to a third party, disparaging a person in his trade, office or profession," says attorney Sack.

Sack offers the following strategies for protection against a former employer's slander:

* Act promptly once you find out that someone from your former company is making defamatory remarks that inhibit your chances for future employment. (For example, send the employer a cease and desist letter.)

* Take immediate legal action if you believe you're being blacklisted.

* Recognize that some states treat untruthful job references as crimes.

* Act swiftly if you discover that important employment data and personnel records were released to an outsider without your consent.

* Demand to inspect your personnel file.

I've been accused of sexual harassment. What action can I take?

Here, you might have a problem, especially if you can't prove your innocence. If you are formally accused, you must wait for the company to take action before you do anything. Additionally, the victim may sue you on a civil charge if the results of an in-house investigation prove unfavorable.

While Fifth Amendment rights operate in a court of law, they carry virtually no weight in the workplace. "An employer has a right to investigate any complaint and to expect an employee to fully cooperate with the investigation," says Paul Besson, director of employee relations for NBC's WRC-TV in Washington, D.C.

Every employee is entitled to general due process (the right to a hearing) when charged with an infraction. However, a nonunion employee charged with an infraction, including sexual harassment, doesn't have any inherent rights to representation before the company, says Besson. Although Besson recommends that you consult an attorney for advice, he explains that "your personal legal counsel would not be invited to sit in on the investigation." During an investigation, "a nonunion employee basically has only those rights granted by the company's policies," he says.

However, "union members do have a right to union representation when the employee is speaking with the company," Besson continues. But even for union employees, sexual harassment charges are tough to fight. Says Besson, "You're pretty much on your own in the investigation."
COPYRIGHT 1993 Earl G. Graves Publishing Co., Inc.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1993, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Title Annotation:employee rights
Author:Baskerville, Dawn M.
Publication:Black Enterprise
Date:Jun 1, 1993
Words:3086
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