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November 14, 2006 > Watercooler Counsel

Watercooler Counsel

by Rich Proulx & Malinda Tuazon

Risky Business

Q:  I work as a Server in a restaurant. Two new employees were hired and they were given scheduling preferences that violate our standing seniority policy. A group of us complained to the owner that we felt we the new employees were receiving unfair, preferential treatment. He told us that because we’re not members of a union, we have no rights to complain about our working conditions. He even went so far as to tell us we’d be suspended if we complained about the matter again. Is he right? Do we really have no rights?

Scared Senior Server
Milpitas, CA

A:  Yes and No. The owner is incorrect in some ways because everyone has rights to complain about certain working conditions that have nothing to do with unions. For example, you’re entitled by law to receive a certain minimum wage and to get breaks depending on the number of hours you’ve worked. You are also protected from retaliation for complaining about those wage and hour violations.  In your case, because you don’t have a union, you probably don’t have an agreement with your employer which governs your scheduling based on seniority. Unions generally set those kinds of agreements in place and lay out the process to complain about breaches of those agreements by the employer.

Unless your employer is violating the seniority policy in a discriminatory way (e.g. based on race, sex, age, etc.), you may not have much outside recourse.  But, you do have other rights! According to the National Labor Relations Board (NLRB), employees are protected from retaliation for concerted activities for the purpose of trying to improve working conditions. For example, the U.S. Supreme Court has recognized non-unionized workers’ rights to collectively protest the lack of heat in a cold working facility and also validated their protection from retaliation.  In your case, you collectively complained about your working conditions and your boss threatened you. We hope that the threat doesn’t keep you from complaining again if the problem isn’t fixed, but if you do and you end up suspended, you should probably give the NLRB a call.

Q:  A volunteer complained to me the other day about decorations in the lounge area. The employees are almost exclusively men, so we have a few swimsuit and centerfold pictures up. She said she felt sexually harassed every time she had to walk in that room.  I told her she can stop volunteering her time here if she doesn’t like it. She said she was going to find a lawyer. Does she have a chance?

Vexed by a Volunteer
Union City, CA

A:  Well, that all depends on a few very important details.  Is volunteer work required prior to regular employment? Does volunteer work usually lead to regular employment? Do applicants for regular positions who have volunteered get preference over those who have not? If you answered yes to any of those questions, you may be in some trouble.  Telling your volunteer to “love it or leave it” could be viewed as denying her an employment opportunity and the EEOC probably has jurisdiction over the relationship between your employees and volunteers. Just because someone isn’t paid doesn’t mean they don’t have rights.  Besides, is that any way to talk to someone?

Our team of government experts believe you have the right to have your questions answered, regardless of your affiliations.  Since 1983, the number of wage and salary workers who are union members has fallen from 20.1% to 12.5%, according to the Bureau of Labor Statistics.  Send your questions to Rich is a former Supervisory Investigator and Malinda is a current Federal Investigator for the Equal Employment Opportunity Commission Identifying information in the questions may be fictional.


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