Employee

Guide to Employee Rights and Other Laws for Employees in the United States

Employee
This is a guide to employment laws that apply nationwide. Much employment law is also made at the state and local level. Where the state and local laws are more protective of employees, these apply instead of the federal laws. See more about the hierarchy of law at our Legal Basics. You can also see employment laws for California and New York City.

1. In General

First, be sure you are an “employee”

You should make sure you really are an “employee” rather than an independent contractor aka “freelancer.” If you are an independent contractor, most employment laws do NOT apply to you. See our Freelancer/Independent Contractor page for more.

Do employment laws apply to interns or volunteers?

Most employment laws apply to paid interns. If it is a legitimate unpaid internship or you are volunteering, most employment laws probably do not apply. See more on internships.

2. Minimum Wage & Overtime Pay

What is the minimum wage?

Federal minimum wage is currently $7.25, but most states have a higher minimum wage than that. See here for a list of minimum wage by state. And see here for a list of cities and counties which have a higher minimum wage than their state minimum wage.

Am I entitled to overtime pay?

Workers who make less than a certain amount are entitled to “overtime pay.” Overtime pay generally kicks in after you work more than 40 hours in a week. For these extra hours, you would get 1.5 times the normal pay.

Beginning Jan 1, 2020, workers who make less than $35,568 per year are entitled to overtime pay.129 CFR 541 If you make more than that, you may be “exempt” and thus not be entitled to overtime pay, unless you live in certain states or have an employment agreement that entitles you to overtime pay. For example, in California and New York, the threshold is around $50,000 per year.

Barista rights

3. Free speech

Can my employer prohibit me from participating in political activity on my own time?

Depending on your state, you MAY have the right to protection from being fired if you speak out politically (see above), except when your posts have negative implications for your employer or when your employer’s restrictions on posting relate to your job. For example, journalists may be prohibited by their employer from volunteering for political campaigns, or participating in political marches. About half the states have some sort of protections for this, but needless to say, it’s complicated.

For example, the woman in Virginia who was fired for flipping off Trump’s motorcade did not win her wrongful termination lawsuit.

Is my employer allowed to restrict my right to use my personal social media on my own time?

In some ways, yes. If you complain about or say bad things about your employer on Facebook, etc., they can probably legally fire you.

But you DO have the right to use social media for the purpose of getting coworkers to join together to address work-related issues and share information about pay, benefits, and working conditions.2National Labor Relations Act This applies whether you are in a union or not. But BE CAREFUL here. If you just complain about your employer on social media without any intention of getting your coworkers together, this activity may not be protected. See more at the website for the National Labor Relations Board.

And as discussed above, depending on your state, you MAY have the right to speak out politically (see above).

Posting about your employer anonymously is probably fine, although it’s possible that your identity could be later revealed. However, employers may NOT require that you identify yourself when posting.3Boch Imports (2015) 362 NLRB No. 83; §8(a)(1) of the National Labor Relations Act (29 USC §158)

Is my employer allowed to prohibit me from revealing my salary?

NO. Under federal law you have the right to discuss your salary with others, and your employer is legally prohibited from doing anything to retaliate against you for doing so.4National Labor Relations Act

4. Intellectual property

Who owns the rights to work I create during my employment?

For employees, creative work or inventions created for your employer within the scope of your employment is generally considered the employer’s “property” and the employee generally does NOT have rights to it. Such work can include business plans & presentations, drawings and artwork, inventions, etc. Most of this falls under copyright law and patent law.

This is because the work is usually considered “work made for hire,” or that you were “hired to invent”5Banks v. Unisys Corp., 228 F. 3d 1357 – Court of Appeals, Federal Circuit 2000 it. However, inventions or other works you create outside the scope of what you were hired to do are likely your intellectual property, even if it’s related to your employer’s business.6Board of Trustees v Roche

In addition, often employers will have you sign an agreement granting them all rights to any potential intellectual property you could possibly create during the employment relationship. But such agreements may be overly broad and may not hold up in court.

But even if a company does not own an employee’s invention, the company may be able to claim a “shop right” to the work, which is a non-exclusive, no-cost license to use the invention within the normal scope of their business. This may apply when an employee conceives of and perfects an invention during their hours of employment, working with the company’s materials and appliances.

However, some of this may vary by state, so be sure to check your state’s laws (see CA).

5. Taking action with other employees to improve working conditions

Do I have the right to try to improve working conditions at my job?

You have the right to organize co-workers to take actions with the goal of improving the terms and conditions of your employment. A single employee may act alone if he or she is acting on behalf of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.7National Labor Relations Act You do NOT need to be in a union to exercise this right.

6. Taxes

Employers are required to send you a copy of a W-2 form by Jan 31 for the prior year’s income. The W-2 says how much that employer paid you in that year, and how much they took out in taxes.

See more about your rights as a taxpayer.

7. Discrimination & Harassment

Is it illegal for my employer to discriminate against me?

In the U.S., under federal law, employers may not discriminate against employees on the basis of certain characteristics. Many states and cities protect even more characteristics than federal law. See more at the Equal Employment Opportunity Commission (EEOC).

What is the law about harassment at work?

If you are verbally or sexually harassed or bullied on the basis of any protected category of people (see EEOC), or as a result of retaliation for reporting things to the government, you may have a claim against your employer.

Is it illegal for my boss to yell at me?

Generally, no. For the most part, it is not illegal to be a jerk or bully. However, if a superior is acting in this way because they are biased towards a certain protected group of people (see above), this may be illegal.

8. Wrongful termination

What can I do if I get fired?

If you are fired as a result of discrimination or retaliation for whistleblowing, you may have a claim for “wrongful termination.” Also, if you have an employment agreement or contract that says you cannot be terminated except for “cause” or “good cause,” you may also have a claim for wrongful termination and/or breach of contract.

Other than that, you probably don’t have much recourse if you get fired, as the default rule is that employees are “at will,” serving at the will of the employer.

9. Suing your employer

What is arbitration and are employers allowed to force employees and prospective employees to agree to it?

Arbitration is a way to resolve legal disputes outside of the court system. Employers and large companies generally prefer arbitration rather than the courts for many reasons (see our Guide to Arbitration). Thus, many employers include a “mandatory arbitration clause” in employment contracts, requiring employees, as a condition of getting or keeping a job, to agree that if they sue the employer in the future, they must do so through arbitration rather than through the courts. Over 50% of private sector non-union employees are subject to arbitration clauses.

See more at our Guide to Arbitration and other Alternative Dispute Resolution.

Exercise Your Rights as an Employee

For questions about improving working conditions or unionizing, contact your local office of the National Labor Relations Board.

If you feel your rights have been violated, we highly encourage you to find an employment lawyer. Many employment lawyers offer free consultations, and many even agree to be paid solely as a percent of your case payout; so don’t hesitate to give them a call!

If you believe you may have experienced discrimination, contact the Equal Employment Opportunity Commission (EEOC)

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