Know when to leave the wrong job
Q: I am a 40-year-old female employee whose boss assigns projects at all hours of the day and night, including weekends, and demands I do them immediately. I must work in the office, but he also calls me at home regarding work. I am considered exempt, salaried with no overtime pay. I make $70,000 a year, but he thinks that entitles him to order me to work at all hours. He also criticizes me and writes up every small error I make, even when I can correct it with no damage.
He doesn’t allow me my time off, not even for a doctor’s appointment. To compound my stress, I am the sole support for my son — my husband declared bankruptcy — so I can’t afford to quit. I attended all girls’ Catholic schools where we were taught to be polite no matter what. I feel I have no choice but to listen to my boss.
A: Not only are you your boss’s victim, but you are also a self-made victim because you have not dealt with the negative and impractical effects of your upbringing. You do have a choice. Get into counseling, even if it’s by phone. The longer you hold onto your childhood values, the harder it will be to adapt them to today’s world.
To address the potential legal issues, Patrick J. Boyd of the Boyd Law Group, PLLC, New York labor and employment lawyer and chosen as a Super Lawyer every year since 2014, said three important issues must be considered. The first is whether the employee is suffering under a “hostile work environment.”
Second, are laws regarding wages and work hours being violated with the excessive work? Third, because leave entitlements exist as a matter of right, we need to know if those entitlements are being met.
To determine a “hostile work environment,” the federal law is generally not as protective towards employees as state and city laws; federal law prohibits only “severe or pervasive conduct.” State laws may be the answer. For example, the New York Human Rights Law defines discriminatory harassment as occurring whenever an individual is subjected to inferior terms, conditions or privileges of employment. Petty slights and trivial inconveniences are not considered to be discriminatory conduct under New York statute.
Most importantly, workplace harassment violates the employment anti-discrimination law when it is based on a protected category such as sex, race or religion. This employee must show she was subjected to inferior terms, conditions or privileges of employment because she belongs to a protected category. As a member of a protected class, females, she may be able to bring a workplace harassment claim against her boss. She must prove she was subjected to inferior conditions of employment because she is female. Also, she must be able to demonstrate her gender played a role in her treatment.
Employees who are paid on a salary basis are likely to be eligible to receive overtime pay. To avoid paying overtime, an employer has to prove that an exemption applies. But employees must take note that many employers “misclassify” employees as exempt from the overtime provisions of the Fair Labor Standards Act and the state’s labor laws to save on labor costs. Job title or salary rate do not determine whether an employee is exempt; one’s primary duties are the main factor. She should see if her job duties fit into FLSA guidelines.
Under the federal Family Medical Leave Act, eligible employees are entitled to a total of up to 12 work weeks unpaid leave during any 12-month period with job reinstatement privileges. However, FMLA has limits and leave is not available to everyone. The employer must have more than 50 employees, and the employee must have worked there for at least 12 months. FMLA provides a means for families to balance both work and medical or personal needs without sacrificing job security. If FMLA is not available to her, state law may provide broader coverage.
In New York, an employer is not required to provide employees with vacation benefits, either paid or unpaid, nor does it require private employers to provide employees with either paid or unpaid holiday leave. It does require employers to provide employees with sick leave benefits. This employee’s boss may be violating the law if he is not allowing her to use her sick leave; employees should learn their state labor laws regarding pay and benefits, which may offer some relief.
This employee may have some leave entitlements and claims to explore, but since this boss has no redeeming leadership traits, her best option is to take her time off despite her boss’s objections and find a more law-abiding employer and boss who is a true leader. Knowing when to leave the wrong job is often key to career success.
This employee may have some leave entitlements and claims to explore, but since this boss has no redeeming leadership traits, her best option is to take her time off despite her boss’s objections and find a more law-abiding employer and boss who is a true leader.