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Worker News

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Weekly (3/2/20)

Topic of the Week  Worker Classifications

  • What are my rights as a private sector employee?
  • What are my rights as a union employee?
  • What are my rights as an independent contractor?

What are my rights as a private sector employee?

In most states, the law presumes that private sector employees are employed "at will." The employment-at-will doctrine is that both employer and employee can end the employment relationship at any time without notice or reason. This means that your employer has the right to terminate your employment at any time, for any reason, or for no reason at all or for a bad reason, so long as the reason is not illegal -- even if your performance has been outstanding. The other side of the "at will" coin is that you, as an employee, can quit your job for any reason at any time. You cannot be forced to work for an employer. You don't have to give your employer a reason for quitting.

The presumption for most non-union, non-governmental employees is that employment continues only at the will, whim, and discretion of the parties. If you are fired from your employment without just cause, you will be entitled to unemployment compensation benefits, but nothing more. Because of the employment-at-will doctrine, an unfair or unjust termination, without more, does not necessarily mean that your employer has done anything illegal.

Being fired because your boss just doesn't like you, or wants to hire her cousin to take your job, or has set impossible standards without giving you a chance to prove yourself, doesn't mean that your employer has necessarily done anything illegal. None of these bad motives alone is illegal. Also, the fact that you have worked hard for many years and were a good performer does not, standing alone, protect you from termination.

Most people believe an employer has a legal duty to treat employees fairly. Many people think an employer cannot fire an employee without just cause. Unfortunately, the general law is to the contrary. Because of the "employment-at-will" doctrine, employees have no general protection against unfair treatment. There is no "just cause" protection for non-union, non-government employees in the United States. This lack of protection is now the exception among highly industrialized countries. For example, all the countries of Western Europe have legislation prohibiting employers from discharging workers without just cause. In this country, the state of Montana, Puerto Rico, and the Virgin Islands have statutes prohibiting unjust termination. However, as of this writing, no other states have similar laws protecting employees. As a result, each year thousands of employees in the rest of the country are terminated unfairly and have no legal remedy to correct the injustice.

There are noteworthy exceptions to employment at will. Some commentators have stated that the at-will doctrine has been drastically eroded, and that the exceptions are now so numerous as to have "swallowed the rule." The presumption of at-will employment can be rebutted by the relationship between a particular employer and employee. For example, there may be an employment contract which forbids unfair or arbitrary discharges. Many federal and state statutes place restrictions on the right to discharge. There are many laws forbidding various kinds of discrimination and other forms of wrongful discharge. For example, you cannot be fired solely because you are a woman. You cannot be fired because your supervisor does not like your religion. You cannot be fired for taking time off for jury duty. These and other exceptions to employment at will are discussed in later sections.

What are my rights as a union employee?

The collective bargaining agreement between a union and an employer determines a union employee's rights. To determine whether a certain employment decision, for example, termination or demotion, was illegal, a union employee must first look to the collective bargaining agreement (CBA or contract).

Union employees are not usually employees at will. The collective bargaining agreement contains rules governing when and how discipline and discharge shall be meted out. The CBA generally drastically limits the employer's ability to fire employees at will. Usually the employer must have just cause to terminate a union member's employment. The union member has an established grievance procedure to challenge the reasons for his or her termination. Union employers often are required to utilize progressive discipline and issue written warnings prior to dismissal.

Employers must permit union members to use applicable grievance procedures to challenge decisions made about their employment. When employers and employees are unable to agree to a resolution of the grievance, the union typically has the right to have the matter submitted to an impartial arbitrator for a final and binding decision. Arbitrators often have the power to reinstate employees with or without backpay and their rulings are enforceable in court.

All union members have the right to see their union contract. If you don't understand some of the provisions of the CBA, contact the union and speak to a representative. Your union exists to represent your interests, and should be able to explain your employment rights to you.

What are my rights as an independent contractor?

If you are a true independent contractor, you are not an employee. Most federal and state laws protecting employees do not apply to self-employed, independent contractors. When a company does not retain the right to control and supervise the individual's time, work performance, method of work, job activities and working conditions, there usually is no employment relationship. In determining the independent contractor issue, courts also often look at whether the individual is truly in business for himself or whether as a matter of economic reality, he or she is solely dependent on the company.

Thought of the Week

"Worker classification is important because it determines if an employer must withhold income taxes and pay Social Security, Medicare taxes and unemployment tax on wages paid to an employee. Businesses normally do not have to withhold or pay any taxes on payments to independent contractors. The earnings of a person working as an independent contractor are subject to self-employment tax."

–IRS: Understanding Employee vs. Contractor Designation

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Weekly Comic by Jerry King

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    • 36% of U.S. workers participate in the gig economy through either their primary or secondary jobs.
    • 29% of all workers in the United States have an alternative work arrangement as their primary job.
    • Nearly 40% of the American workforce now makes at least 40% of their income via gig work.

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