Things You Should Know: Employment Law

by Bryan Spoon on Jun. 29, 2017

Employment Employee Rights Employment  Employment Discrimination Employment  Whistleblower 

Summary: This article is based upon another attorney's work, but changed to reflect Montana law. The original can be found at https://www.avvo.com/legal-guides/ugc/employee-rights-overview

Discrimination

You have the right to be free from discrimination in several contexts.  The most common context is employment, however anti-discrimination laws go far beyond that limited context.  You DO have the right to not be discriminated against in housing, education, public accommodations, credit/finance/insurance and state and local government services.  Federal anti-discrimination laws (which apply to employers with over a certain number of employees, usually 15) and the Montana Human Rights Act (which applies to all employers operating in Montana) do not prohibit all types of discrimination, however.  To be covered under these laws, you must be a member of a “protected class” and the discrimination must be related to your membership in that class.  These classes include the following:

  • Race
  • Age (if you are 40 or older)
  • Sex (including pregnancy, maternity, sexual harassment, sexual orientation in Montana)
  • National origin
  • Disability
  • Pregnancy
  • Familial status (housing only)
  • Religion
  • Genetic information

You ALSO have the right to be free from any kind of discrimination or retaliation based on your objecting to any discriminatory practices of an employer or the government, and it is illegal to discriminate against a person because he or she is married to, or associated with, a member of any of the protected classes of individuals above.  Montana State law protects all employees, but to be protected under federal law and the Americans with Disabilities Act (ADA), an employer must have at least 15 employees (for age, 20 employees).  It is important to point out that you DON’T have the right to be free of discrimination against you for just being you.  There are no protections for personality conflicts, appearance, non-religious beliefs, and other non-protected categories.

If you feel you have suffered discrimination based upon any of the classes listed above, you should contact an employment attorney or the Montana Human Rights Bureau at (800) 542-0807 or visit them at http://erd.dli.mt.gov/human-rights.  Your time to file a complaint is very limited (usually only 180 days from the date of discrimination), so if you have any doubt, contact them sooner than later.

Harassment

You DO have the right to not be harassed due to your race, age, sex, national origin, disability, pregnancy, religion, genetic information, color, objecting to discrimination, or association with a person in one of these categories.  All employers in Montana are subject to the Montana Human Rights Act, but only employers with 15 or more employees are subject to the ADA. You DO have the right not to be harassed if you’re a covered whistleblower, took covered Family and Medical Leave, made a worker’s compensation claim, or took some other legally protected action.  You DON’T have the right to be free of a hostile work environment that isn’t based on one of the above categories.  You DON’T have the right to be free of bullying or general harassment in the workplace.  If you complain about harassment, you DON’T have the right to be free of retaliation unless what you complained about was legally-protected harassment in one of the categories above.

Right to Work

If you live in a “right to work” state, you probably think you have rights you don’t.  Be careful about this.  If your state is “right to work,” that means you DO have the right to work in most industries without joining a union.  You DON’T necessarily have the right to work for a competitor of your employer’s.  If you’re being asked to sign a non-compete agreement, Montana has limited the application of non-compete clauses to the county in which you are employed as well as adjacent counties.  Right to work simply has no effect on non-compete clauses in employment agreements.  Montana is the only state that is not an employment “at-will” state.  In Montana, non-probationary employees can only be terminated if the employer has “good cause,” or a business related reason for the termination.  Employers in Montana are allowed to set any reasonable probationary period for employees they wish.  If the employer has no policy, the law presumes a 6 month probationary period during which employees can be terminated without cause.  This does not mean, however, that employees can be terminated for any reason.  Employers are still prohibited from terminating a probationary employee for discriminatory or retaliatory reasons.  Other rights and responsibilities are contained in collective bargaining agreements (for members of a union) or employees under contract.

Benefits

You DO have the right to get a description of your health insurance, pension, and other benefit plans.  You DO have the right to enforce the duty of the people managing your benefit plans to administer them without fraud, self-dealing or kickbacks.  You DON’T have the right to any specific benefits from your employer, unless you are granted these benefits in a collective bargaining agreement.  Your employer doesn’t have to provide health insurance, vacation pay, sick pay, severance pay, pension or other benefits unless they have an existing plan.

Hours

You DO have the right to be paid for all hours worked and to be paid overtime for hours worked over 40 hours if you aren’t exempt.  You DON’T have the right to a specific schedule, to not work extra hours, or to come in late.  If you need assistance collecting unpaid wages you feel you are entitled to, contact the Montana Department of Labor, Wage and Hour Division at (406) 444-5600.  Visit their website at http://erd.dli.mt.gov/labor-standards/wage-and-hour-payment-act.

Illness

You DO have the right to take Family and Medical Leave if you’ve worked at least a year, if you work enough hours, and if your employer has 50 or more employees.  But there are lots of hoops to jump through, so read your handbook and know the employer’s requirements.  You DON’T have the right to sick leave, excessive absenteeism, take care of a sick kid, or miss work due to illness (even with a doctor’s note) unless you are covered by Family and Medical Leave, or unless you suffer from a disability as discussed below.

Disability

You DO have the right to seek reasonable accommodations for your disability under the ADA that allow you to perform all the duties of your job if your employer has at least 15 employees.  If your employer has fewer employees, you still have the same basic rights under Montana’s Human Rights Act.  It is NOT a reasonable accommodation to eliminate an “essential function” of your position, nor do you have the right to an accommodation that would cause your employer an undue burden.  If you request an accommodation, your employer should schedule a sit-down meeting with you to discuss the specifics of your limitations before denying any request.  Denying an accommodation request that is reasonable constitutes discrimination under both state and federal law.  If no accommodation is possible, you may be entitled to reassignment.

Whistleblower

You DO have the right to report illegal activities of the employer to specific government entities, to object to or refuse to participate in certain illegal activities of the employer, and to not be retaliated against for doing so.  Whistleblower laws are diverse and have lots of requirements, so make sure you’re doing what is required before you report or object to the illegal activity.  You DON’T have the right to complain about incompetence, coworkers ripping off the company, ethical violations, unprofessionalism, or general harassment without rising retaliation.  Make sure you’re protected before you complain.

Privacy

You DO have the right to privacy in your phone calls unless your employer meets certain legal requirements.  Montana law requires that each party expressly consent to being recorded.  Surreptitious recording is illegal, unless you are recording a public official in a public place.  If you think you’re being illegally recorded, contact an employment lawyer to find out your rights.  You DO have some rights to privacy of your medical information.  You DO have the right to not be subjected to a polygraph (except certain professions like law enforcement).  While many employers use credit history in their employment decisions, both Montana and the EEOC consider this practice to be a legal violation.  It’s illegal to discriminate against you based upon a bankruptcy.  You DON’T have the right to keep your criminal record a secret unless it’s been expunged.  You DON’T have the right to dress any way you want.  You DON’T have the right to privacy in your off-duty behavior.  You can be fired for things you do outside of work.  If you work for government, you are protected from having your belongings searched.  You DON’T have the right to privacy in your workplace internet use or email.  You probably DON’T have the right to not be drug tested. No states prohibit employment drug testing, but some do require cause for the test if it’s done while you’re employed, as opposed to pre-employment.  You DON’T have the right to free speech.  Your postings on Facebook, Twitter, and other websites can get you fired.  If you work for government, you have some free speech protections but they’re not unlimited.

Conclusion

We hope these basic tenants of employment law, especially with regard to the laws of Montana are helpful to you.  There are many nuances to these laws and nothing contained herein should be construed as legal advice.  These are laws and thus, they are subject to frequent change.  If you have specific questions about your rights or the rights of your employees, contact an attorney who practices employment law.

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