Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, August 18, 2017

Can You Be Fired For Being A Racist A**hole? Yes. Well, Maybe. Probably.

So, a Twitter campaign has been outing folks who attended the Nazi/white supremacy/alt right rally outside the University of Virginia in which a Nazi murdered a protester and injured many others by plowing into them with a car. Some of those who have been outed were promptly fired. I've been asked whether firing someone for attending a racist rally is legal.

The answer is yes. Well, maybe. Probably. There. Are you happy?

An employer who is aware of an employee's propensity to engage in race or national origin discrimination (or any other kind of discrimination) has a duty to maintain a safe workplace. That means firing or disciplining the worker, or taking other steps to make sure he or she doesn't engage in illegal harassment or discrimination in the workplace. An employer that fails to take action could be liable for punitive damages if the racist employee acts on his/her beliefs at work.

Thus, my initial answer, which is yes, you can be fired for being a racist a**hole. However.

Some states and local governments have laws protecting you from discrimination due to your political affiliation or activities. For instance, California, Colorado, New York, North Dakota and Louisiana say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. Here in Broward County, it's illegal to fire employees based upon political affiliation. If you work for government, there's the good old First Amendment to protect you. Plus, the Civil Service Reform Act of 1978 prohibits political affiliation/activity discrimination against federal employees.

Thus, my second answer. Maybe. This is one of those situations where two laws rub up against each other. I would think a strong argument could be made that attending a rally like last weekend's would give an employer a legitimate reason other than political affiliation to fire or discipline an employee. Once the employee starts spewing racist stuff in public and waving swastikas, that may well cross a line. Will the courts decide that the employer has a legimate business to protect? Maybe. Even with government employees, the government may well be able to prove that the employee's free speech rights were outweighed by the government's right to efficient and orderly operation.

If, however, the employee has always been respectful to coworkers and customers of color and continues to do so after the rally, maybe the employer doesn't have a legitimate reason other than political affiliation to fire the person.

Still, I default to my third answer, probably. Most states have no legal protection for political firings. So most employees have no legal protection if they attend a racist rally. The employer probably has a duty to protect coworkers and customers from a racist. I suspect most courts will say firing someone for attending a racist rally that turned murderous is perfectly legal, maybe even required.

Friday, August 11, 2017

Will You Let Your Employer Microchip You? Just Say No!

And so it begins. A Wisconsin company is implementing a "voluntary" program where employees can be microchipped. They swear that they aren't using GPS technology to follow the employees. However, they say it is a convenience to the employees, allowing them to pay for things and get in and out of the building quickly.

What's the worst that could happen?

While this foray into treating employees like beloved pets sounds benign, it's only the beginning. I guarantee that if this company's employees agree to be microchipped, employers all over the country will demand the right to implant employees with chips that do have GPS and other nasty tracking software.

I can tell you some of the worst that can happen with microchipping employees. Here are just some of the possible nightmare scenarios:

  • Worker's comp: Infections, allergic reactions, cancer (yes, cancer), medical problems galore.
  • Religious discrimination: Some employees will have religious objections to these implants. Will those objections be honored, or will the employees be fired? 
  • Privacy: Employers will know where employees are at all times. Do you really want your employer timing your bathroom breaks, logging every time you get a cup of coffee or take a brief walk to stretch your legs? And if they have GPS, they will know every time you go to a bar, a movie (and can figure out what movie you saw), political rally, union meeting, etc.
  • NLRB: If employers can track which employees go to union meetings, I predict some NLRB complaints.
  • Disability and pregnancy discrimination: It's only a matter of time before microchips are a "wellness" measure tracking your blood pressure, weight, diseases, and pregancy. Once employers are aware of this information, I can guarantee disability and pregnancy discrimination suits will abound. You should not trust your employer with your health information. It's none of their business.

Need I go on? Just say no to employer microchipping, before all employees are treated like dogs.

Friday, July 28, 2017

Hey Florida Medical Marijuana Users - Gov. Scott Says You Can Be Fired

I've previously written about Florida's medical marijuana law saying nothing about protecting employees who are prescribed marijuana from discrimination. That was bad enough.

Now, it's worse.

Gov. Rick Scott recently signed into law a bill that very specifically says you can be fired for using medical marijuana.

The new law says that "medical use" does not include use, "In a qualified patient’s place of employment, except 228 when permitted by his or her employer."

It also provides:
(15) APPLICABILITY.—This section does not limit the ability 1678 of an employer to establish, continue, or enforce a drug-free 1679 workplace program or policy. This section does not require an 1680 employer to accommodate the medical use of marijuana in any 1681 workplace or any employee working while under the influence of 1682 marijuana. This section does not create a cause of action 1683 against an employer for wrongful discharge or discrimination. 1684 Marijuana, as defined in this section, is not reimbursable under 1685 chapter 440.
So if you thought your employer might actually have to accommodate your use of medical marijuana, think again. It will be in your bloodstream and urine for days, so you can't use it only at home and hope for the best.

The Florida legislature and our governor have, yet again, screwed employees over.

Friday, July 21, 2017

Stupid HR Stuff: If You Don't Want Employees To See The Handbook, You're Doing It Wrong

I hear this all the time: "I was required to sign a paper saying I received the handbook. As soon as I signed, the HR folks snatched up the handbook and didn't let me keep a copy." Or, "I was required to sign saying I received the handbook, but I never actually saw it."

What the heck was the point of that? The whole point of having a handbook is to let employees know what their responsibilities are, where to report issues, how to put in for vacations and sick time, all the stuff you actually want them to do and not do.

If you don't want your employees to see your employee handbook, you're doing it wrong.

I think you'll have a hard time proving some key employment law defenses if you don't actually let employees have a copy of the handbook.

Plus, once you have an employee sign a document that you know and they know is a lie, you lose all credibility with them. Everything you do from then on is a joke. A sham. They won't believe you anymore.

To employees who are asked to sign a document saying they received something they never got, I suggest signing with a notation like, “I was allowed to look at it once but was prohibited from getting a copy.” Or maybe, "I am required to sign this but I have never actually seen the handbook." Having to make a notation like that is probably a bad start to new employment, but it's better than signing something you know is not true.

Whether or not employees got a copy of their handbook comes up in almost all employment litigation. Employers who make a mockery of their handbooks look pretty stupid in court. Not only is your credibility lost with your employees, but you could lose credibility with a judge or jury too.

Friday, July 14, 2017

Can I Fire An Employee If Their Ex Threatens The Boss?

I was asked this question by a friend asking on behalf of someone else and thought the answer might be useful here. 
An employee has become involved with multiple abusive men, who then end up calling the office and harassing or verbally abusing other employees. The latest was a call where he threatened to beat up the boss. They want to know if they can fire her.
They’re in Texas, which doesn’t have a law protecting domestic violence victims from firing, but I wonder what the right way would be to handle this if they did.

And can they legally tell her that while they're sympathetic to the situation she’s in, they can’t put other employees and clients at risk, and that they can’t continue to employ her if people from her personal life continue to call her office and threaten people?
Boo to Texas for being behind the times. Many states have laws protecting domestic violence victims. In those states, the answer would be different. A proposed federal law to protect domestic violence victims from discrimination at work went nowhere. Are we surprised? Here is a brief summary of some state and local laws protecting domestic violence victims from employment discrimination: 
  • California law says an employer can't fire an employee for being a domestic violence victim, and it also requires employers to make reasonable accommodations to secure the workplace for the victim's safety. Employers with 25 employees or more must grant victims reasonable leave to deal with court dates and other issues relating to the domestic violence. Colorado provides up to 3 days of leave if the employer has 50 or more employees.
  • Connecticut provides for up to 12 days of leave and bans discrimination against domestic violence victims. 
  • Delaware’s law makes it illegal to discriminate against domestic violence victims and requires employers to make reasonable accommodations such as schedule changes or changes in job duties.
  • Florida law grants domestic violence victims up to 3 days of protected leave. Employers cannot discharge, demote, suspend, retaliate or otherwise discriminate against an employee for exercising their rights to domestic violence leave. To our legislature's credit, this law has been in place since 2007, so we were a whopping 7 years ahead of pro-employee Massachusetts for a change. Miami-Dade County has an ordinance providing for up to 30 days of protected leave. 
  • Hawaii also has a protected leave, the amount of which depends on the size of the employer. Employers can't discriminate against victims and also must provide reasonable accommodations. 
  • Illinois law requires reasonable accommodations, prohibits discrimination and 8 - 12 weeks of protected leave, depending on the size of the employer 
  • Indiana prohibits discrimination for either filing a petition for a protective order or for actions taken by the abuser. It also provides that employer and employee may mutually agree to accommodations. 
  • Kansas law says employers can't discriminate against domestic violence victims who need time off. 
  • Maine law grants reasonable protected domestic violence leave. 
  • Massachusetts law requires employers with 50 or more employees to give up to 15 days off for medical attention, securing new housing, court proceedings and other needs related to the domestic violence. 
  • New Mexico provides up to 14 days of protected leave. 
  • New York state prohibits discrimination against domestic violence victims. New York City and Westchester County require reasonable accommodations for domestic violence victims. 
  • North Carolina prohibits discrimination against victims for taking reasonable domestic violence leave. 
  • North Dakota allows state employees up to 40 hours of sick leave for domestic violence victims and their family members. 
  • New Jersey's law says an employee/victim is entitled to time off for treatment or counseling, and also says they have to be allowed to attend legal proceedings, civil or criminal, relating to the incident. 
  • Oregon requires employers with 6 or more employees to grant reasonable leave and prohibits discrimination. Portland also requires protected domestic violence leave.   
  • Philadelphia provides leave depending on the size of the employer. 
  • Rhode Island prohibits discrimination.   
  • Washington DC has a sliding scale for leave depending on how large the employer is.
  • Washington state provides reasonable leave. Seattle has its own leave ordinance and also bars discrimination. 

Now, back to Texas (and this applies to most other states too). Some things to look into before even thinking about firing this employee are:

Subpoena: If she has been subpoenaed to testify in the court proceedings, Texas Labor Code § 52.051 prohibits termination of an employee for complying with a subpoena. Many states protect people from being terminated for testifying under subpoena, especially crime victims.

Sex discrimination: If a male crime victim was not terminated under similar circumstances, then firing the female for being a crime victim could be illegal sex discrimination. Particularly if a male domestic violence victim was not fired, she might have a case. But any male victim of a violent crime could be a valid comparator if they were being threatened, stalked or subjected to anything that could potentially land in the workplace.

Disability discrimination: Therefore, there is an argument that she is being terminated due to a disability or being regarded as disabled.

FMLA: If she is suffering from depression, anxiety, PTSD or another condition resulting from the domestic violence, she could be entitled to FMLA. Offering that might be an alternative to termination.

Other discrimination: If a member of a different race, age, national origin, or other protected category was the victim of a similar crime and was not fired, she could argue discrimination.

I would think another avenue, rather than termination, would be to assist the employee in getting an injunction. Plus, the boss who was threatened could also be entitled to an injunction against him. Wouldn’t it be better to try to help her by keeping him out of the workplace? Wouldn’t that send a better message to other domestic violence victims? It would be a terrible message to send to other domestic violence victims. It could even make them afraid to report the crime to the authorities if they think they will be fired for being a victim.

Friday, July 7, 2017

Former Employer's Attorney Can Be Liable For Despicable Retaliation

In a case that has the management-side bar moaning and groaning, the 9th Circuit held that an attorney who set up an ICE deportation sting against a client's former employee could be held personally liable for retaliation. As if it weren't bad enough that this attorney represented an employer that used the employee's immigration status to bully them into staying with the company, then failed to pay wages due, this attorney then had the former employee, a milker for a dairy, deported. Indeed, he bragged that it is his practice to have employees who sue his clients deported:

Here's what the Court said about the facts:

Instead of complying with federal law, the Angelos wielded it as a weapon to confine Arias in their employ. When Arias informed Luis Angelo in 1997 that he had been offered a position with another dairy, Luis “responded that if [Arias] left to work at the other dairy, [Luis] would report the other dairy to federal immigration authorities as an employer of undocumented workers,” which Arias was. This threat caused Arias to forego his other employment opportunity and to remain with the Angelos.
. . .
On June 1, 2011, ten weeks before the state court trial, the Angelos' attorney, Anthony Raimondo, set in motion an underhanded plan to derail Arias's lawsuit. Raimondo's plan involved enlisting the services of U.S. Immigration and Customs Enforcement (“ICE”) to take Arias into custody at a scheduled deposition and then to remove him from the United States. A second part of Raimondo's plan was to block Arias's California Rural Legal Assistance attorney from representing him. This double barrel plan was captured in email messages back and forth between Raimondo, Joe Angelo, and ICE's forensic auditor Kulwinder Brar. Arias quoted these revealing exchanges in his current complaint:
. . .
Plaintiff became aware on June 22, 2011 that Defendant had provided information concerning Plaintiff to the immigration authorities. Fearing that he would be deported and separated from his family, Plaintiff suffered anxiety, mental anguish, and other emotional distress from Defendant's retaliatory action. 
On July 11, 2011, one month before trial, the parties participated in a settlement conference. In lieu of proceeding to trial on the wage and hour claims comprised within the 2006 Lawsuit, Plaintiff entered into a settlement and release of those claims, due in substantial part to the threat of deportation created by Defendant's communications with ICE. 
On information and belief, Defendant RAIMONDO's actions against Plaintiff are reflective of and consistent with his pattern and practice of retaliating against employees who assert their workplace rights. In fact, Defendant RAIMONDO has stated in a declaration filed in a court action that it is his practice to investigate the immigration status of plaintiffs who have brought legal claims against his clients.  
On at least five additional occasions, and consistent with his pattern and practice, Defendant RAIMONDO has contacted ICE with respect to employees who have asserted their workplace rights against employers whom Defendant RAIMONDO has represented, and has offered his assistance to ICE in apprehending those employees.

On May 2, 2013, Defendant RAIMONDO confirmed the above pattern and practice in an email he sent to Thomas Hester of the Office of Inspector General at the Legal Services Corporation, in which he stated, “The time when I have had litigants deported, I have always simply taken action rather than make any threats. The attorneys find out when their clients are already gone.”

Wow. Just wow. Every time I think I've heard the most despicable thing done to an employee possible, I hear something worse.

The Court's findings give me hope in an otherwise dismal landscape for employees:

Congress made it illegal for any person, not just an “employer” as defined under the statute, to retaliate against any employee for reporting conduct “under” or “related to” violations of the federal minimum wage or maximum hour laws, whether or not the employer's conduct does in fact violate those laws. ․ Moreover, “the remedial nature of the statute further warrants an expansive interpretation of its provisions. ․” 
Id. at 857 (second omission in original) (quoting Herman v. RSR Sec. Servs., 172 F.3d 132, 139 (2d Cir. 1999)). 
The FLSA is “remedial and humanitarian in purpose. We are not here dealing with mere chattels or articles of trade but with the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others ․ Such a statute must not be interpreted or applied in a narrow, grudging manner.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944). 
Accordingly, we conclude that Arias may proceed with this retaliation action against Raimondo under FLSA sections 215(a)(3) and 216(b). Raimondo's behavior as alleged in Arias's complaint manifestly falls within the purview, the purpose, and the plain language of FLSA sections 203(a), 203(d), and 215(a)(3).

I suspect that some federal courts will not view a lawyer's liability under the statute in the same way, but I think this is the correct conclusion. It's one thing to advise a client on whether a client can take a particular action. That should be protected by attorney-client privilege. But once the attorney crosses the line and personally takes retaliatory action, then they should be liable.

I think, at least here in Florida, the Florida Bar would look askance at any lawyer who set up a deportation sting at a deposition or mediation, but I have no idea how other Bars would look at it. Two Florida lawyers who set up an opposing counsel for a DUI sting were disbarred last year.

And this brings me to a pet peeve about employment law. Most management-side attorneys act like professionals. It's a job like any other, not to be taken personally. Some, on the other hand, consider law to be a blood sport and try to destroy the litigant (and sometimes the litigant's attorney) with all kinds of nasty out-of-court tactics. An employee suing a client should not be taken as a personal affront (and good luck making money as a defense litigator if nobody sues your clients). A lawyer making vicious attacks against a litigant (other than zealous representation in court) is completely unprofessional, and gives all lawyers a bad name. I hope more courts and Bars crack down on this kind of behavior.

Friday, June 30, 2017

Access The Ex-Boss's Email? Better Like Wearing Orange

In yet another example of the criminalization of employment law, a Tesla engineer was just convicted and placed on probation for accessing his ex-boss's email. On top of 5 years of probation, he has to provide restitution to the company, which claims it was damaged when he posted confidential information online.

The charges were two felonies and one misdemeanor that could have resulted in 6 years of prison time.

Bottom line is that there are some harsh laws that prohibit you from accessing any emails or computer information you aren't allowed to access. Once you're fired, you can't access anything with company passwords even if they don't change them or discontinue your access right away.

Even if you still work there, if you access something with someone else's password or that you know you aren't allowed to access, you could be committing a crime.

Expect the courts to continue to come down hard and harder on employees as we get more and more Trump appointees on the bench. Be careful out there.