Lewis Maltby is the former director of employment rights for the ACLU, and founded the legal advocacy nonprofit National Workrights Institute in 2009. Recently, he authored “Can They Do That? Retaking Our Fundamental Rights in the Workplace.” We caught up with him to ask, well, what exactly can they do?
What is the legal definition of “employment at will”?
Your boss can fire you for any reason under the sun, no matter how unfair or irrational. He could do it because he doesn’t like the color of your tie.
Is that the law in every state?
Essentially. There are a few states that have laws about off-duty behavior. The big exception would be discrimination. But it has to be the specific discrimination congress has said can’t be used. Congress hasn’t prohibited discrimination against gays, so employers can still discriminate against them, legally.
Can you be fired for your politics?
There are about five states where your boss can’t fire you for your politics. But that’s it. If you’re not in a state where off-duty conduct is protected, and it’s not a prohibited form of discrimination, and you’re not a whistle-blower, you don’t have a case. If your boss accused you of taking money and you had a videotape of someone else doing it, it wouldn’t do you one bit of good in court.
When, as a nonunion worker, do you have a legal leg to stand on?
“Wage and Hour” violations are very common. There are thousands of employers that break these laws: They don’t pay time-and-a-half for overtime, or they pressure you to clock out and continue to work, or they don’t pay minimum wage. In the restaurant business alone there are, probably, more companies that break this law than follow it. You can do something about that. The Department of Labor will usually investigate if they receive substantial evidence that the law is being broken. And it’s anonymous: Your boss will never know who called the Department of Labor.