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, March 29, 2013

Florida Companies, Republicans Try to Make Wage Theft Legal, Again

The Florida Retail Federation hopes the third time's the charm in trying to make wage theft legal. They tried two other times to strike down the wage theft ordinances that are popping up around the state to curtail unscrupulous employers who pocket employee wages for their own use. This time, they've enlisted Florida Republican legislators to help with a truly Orwellian scheme.

Rep. Tom Goodson, a Republican legislator from Titusville, has filed a bill that purports to help employees fight wage theft. The problem is that, unlike county ordinances that provide for double or triple damages against thieving employers, this bill says employees get exactly what they are owed. The county ordinances are (mostly) preempted and counties are prohibited from enacting new ordinances. This is supposed to help employees how exactly?

Let's see. Scumbag Employer, Inc. decides to hire low wage employees and fire them right before their paycheck is due. They don't pay the employees. The employees have to sue. Under this law, the employees have to come out of pocket for several hundred dollars for the filing fee to sue. In the county systems, they file for free. These are folks living paycheck to paycheck. That's probably a week's wages for them. Then they have to face court hearings, court reporter fees, maybe some depositions and discovery. Under the county systems, they have one hearing and get a ruling.

If an employee manages to survive the wait, they might get their wages paid after about a year. Under the county systems, it's probably a few months. So Scumbag Employer, Inc. writes a check after a judgment issues, but in the meantime they got to use the employee's wages all that time. Plus, most employees will give up and not bother. They can't afford to fight. A big win for Scumbag Employer, Inc., which will now have zero incentive to pay employees when wages are due.

I still don't understand how this benefits legitimate businesses. How can they compete with Scumbag Employer, Inc.'s slave labor business model? Instead of supporting the county efforts to shut down these free labor mills, corporations and their organizations are crying foul. Can someone explain this to me?

Oh, sure, employees can still complain to the Department of Labor and try to get help.  The problem is, they are overworked and overwhelmed. Florida wage theft is rampant, and employees need laws with real teeth. If employees stealing sodas worth less than $2.00 can be arrested, why shouldn't employers who steal hundreds or thousands of dollars from employees land in prison? At least, they should be penalized.

The Miami Herald came out against this blatant attempt to help wage pirates steal their employees' money. If you aren't convinced by me, read their well-reasoned editorial. Hopefully, Florida legislators will not fall for this sneaky trick to help thieves who are stealing money belonging to their constituents. As to legislators who support this measure, I hope the voters in their districts who are also employees (i.e., most of them) will vote their wallets and send these pro-theft lawmakers packing.

Friday, March 22, 2013

Lies Your Employer Tells You

Employees, for the most part, believe everything their employer tells them. Most of the time, your employer's interests and yours coincide. You have a job to do, and they want you to do it. But sometimes, those interests collide. Sometimes, you have to take what your employer says with a grain of salt. Other times, they're flat-out lying.

Here are some lies your employer may tell you, and why you shouldn't believe them:

You have to resign: Flat-out lie. Nobody can make you quit your job. They may want you to sign a letter of resignation. That means they probably get out of paying unemployment, and may be able to convince a judge or jury that you left willingly instead of being forced out. Don't resign unless you're getting a severance package or something else that makes it worth it.

Sign this and you can keep your job: Depends on what it is. If you're told by the Risk Management guy who locked you in a room for hours and accused you of stealing that you can keep your job if you admit to stealing, it's a lie. You'll be fired and possibly arrested as soon as you sign. If it's a noncompete agreement, there are states that allow your employer to say, "sign or be fired." My state, Florida, is one of them. Some states don't allow this. Check with an employment lawyer in your state before you give up your right to work for a competitor.

These are never enforced: Horse hockey. Flat-out lie. Why would your employer ask you to sign an agreement that's never enforced? It's because they think it will be enforced. Anyone who tells you otherwise is a liar. Before you sign something you think won't be enforceable, check with an employment lawyer in your state.

We'd never do that: Flat-out lie. If your employer is trying to get you to agree that you give up your copyright to your novel, your rights to the video game you're designing in your spare time, or your LinkedIn contacts, they're lying if they say they would never actually invoke that part of the agreement. They wouldn't ask you to sign it if they didn't intend to enforce it.

We've never enforced this before: That may be true, but it doesn't mean you won't be the first. If they don't intend to enforce a noncompete, an intellectual property agreement or other provision, they shouldn't have a problem deleting it. Otherwise, assume the worst.

We're here to help: HR may tell you they're the employee's friend. They may be able to help you as long as your interests align with the company's, but they exist to protect the company, not you. You may have to report sexual harassment, apply for FMLA leave, or seek disability accommodations through them, but that doesn't make them your friend or ally. Do what you have to do, but put it in writing. Cover yourself. You can bet HR is covering the company.

Those are just some of the lies you may be told at work. Don't be fooled. Can you think of other lies your employers have told you? I'd love to hear about it.

Friday, March 15, 2013

Employees: You Have The Right To Say No

I'm constantly surprised by the number of employees who come to me after having signed things their employer shoved in front of them, released claims, accepted transfers or demotions, or even admitted to stealing when they didn't. I ask them, "Why didn't you say no?" They look at me like I've turned into a Martian.

Too many employees don't realize that they do have some rights in the workplace. One major right you have is the ability to just say, "no." That's right. You can say no to your employer.

Does that mean you should say no when you get an assignment you don't like? No. Does it mean you should say no when your supervisor tells you to do something outside your job description? Probably not. Most of the time, saying no will get you slapped with discipline or termination for insubordination. But there are times you should respectfully decline.

Here are some situations where you should definitely exercise the power of "no" at work:

Severance: I suggest that employees never sign a severance agreement the day they get it, especially if they're presented with it when terminated. Instead, tell them you want to review it and take it home. Read it carefully. If you don't understand it, take it to an employee-side employment attorney. You should definitely refuse to sign it if you are releasing claims against the company for minimal dollars, if they are inserting a noncompete provision when you don't already have one, or if you are being told you have to release claims when you're already entitled to severance according to an employment agreement or company severance plan.

Termination papers: You're in your termination meeting. They shove a paper in front of you stating that you've been terminated and every reason in the world why you suck. They demand you sign. Don't do it! Why would you? You don't work for them anymore. They can't make you. What's your upside? If you feel like there's no harm, then sign, "As to receipt only." Make sure you aren't agreeing to what they are saying. You aren't thinking straight, so be very careful.

Resignation: "My employer made me quit." I hear that a lot. How did they do that? Did they hold a gun to your head. Unless you are being offered something substantial in exchange for your resignation (or if the gun scenario really occurs), why would you agree to quit? Make them fire you. At least then you'll probably qualify for unemployment. If you resign, they may say you don't qualify. Some people think it looks better on a resume, but who do you really think you're fooling? Nobody resigns in this economy without having a job lined up unless there's a real problem. That gap in your resume is going to be bad, resignation or no. Instead, if they really want your resignation, get something in exchange for it. Use it to negotiate severance, to get out of a noncompete, or to get something else you really want. You may need help here, so now is probably a good time to talk to an attorney rather than jumping into something.

Admission of a crime: If you're put in a room with Risk Management and told to sign a paper saying you stole something if you want to save your job, don't do it! You're admitting to a crime. Never admit to a crime. First of all, you're fired as soon as you sign. Second, the employer may be entitled to sue you for the value of the item plus two or three times its value, plus attorney's fees and costs. It's a trick. Don't fall for it. Practice these words: "I want to speak with an attorney." Repeat as necessary. By the way, they can't make you stay in that room. Tell them you want to leave. Then leave. If they physically stop you, call 911 or scream for help. Seriously. Then go see a criminal defense attorney.

Demotion or pay cut: If you're given a demotion or pay cut you just can't live with, sometimes it's better to say no and apply for unemployment. If you take the job and can't survive on the money, but will be unable to look for a job while you have the job from hell, then you'll have to quit and probably are disqualified from getting unemployment. There are times it's best to say no.

Promotion: If you're offered a promotion that makes you exempt from overtime, doubles your work, decreases your pay, and the last three guys who held the job died at their desk, say no. Get the details before you accept that promotion. Sometimes, overtime pay means you'll make more and have a better life if you stay where you are.

Release: Severance packages usually come with a release of every claim you ever had or might have against the company. I see some companies that have severance plans requiring severance if the employee is laid off that try to get a release even though you're already entitled to severance. I also see people with employment contracts that entitle them to severance being asked to sign a release in order to get it. Say no. Say it again. Run, don't walk, to an employment lawyer in your state. (Better yet, email them). Why on earth would you release discrimination or other claims when you don't have to? If they want that release, make them give you something you want in exchange.

Transfer: You're being asked to transfer across country in the middle of the school year. Your kids are about to take their SATs, your spouse has a job they love. Say no! At the very least, make sure you get a contract, including that they'll pay your moving expenses, help with getting your spouse and kids situated, and guarantee you a minimum amount of severance if you're fired without cause. Better yet, negotiate that you can only be fired for cause and get a specific term of employment for no less than a year. If they won't put enough guarantees and incentives in writing to make it worth your while, take a pass.

Anything illegal: No job is worth going to jail. And guess who they'll throw under the bus when Johnny Law comes a-callin'? It's you. Say no. Better yet, say no in writing. You might want to look at some whistleblower laws to make sure you're doing what you have to do to protect yourself, or talk to an employment attorney about your rights.

Polygraph: The Employee Polygraph Protection Act prohibits most private employers and potential employers from demanding you take a polygraph, and from firing you if you say no. There are exceptions, but they are few. Polygraphs are not admissible in court because they are not reliable. They can say you're lying when you're not. Say no unless you fall within one of the exceptions. If you committed a crime and you are told you have to take it or be fired, take the firing and go see a criminal defense attorney post haste.

These are just some examples of when it's best to exercise the power of "no" at work. I bet you can think of some more. So go ahead. Say no to your employer.

Friday, March 8, 2013

Are Journalists Exempt From Overtime?

A $660,000 settlement for reporters recently caused both celebration and ire in the journalism community. The celebration was for a victory on behalf of hard-working reporters everywhere. Many reporters work deadly hours for little pay. This decision provides them with some relief, requiring newspapers to pay them overtime for any week they work over 40 hours.

The consternation was caused by the reason for the settlement. The basis for the suit was that journalists are not "creative professionals." This left some reporters shaking their heads. Not creative? But I'm a writer! Of course I'm creative!

Really? Remember what happens to reporters who get too creative. They get unemployed. Forced to resign in disgrace. Publicly outed. Canned. And even sued. Of course, sometimes they get paid big bucks to talk about journalistic ethics.

The Fair Labor Standards Act requires most employers to pay overtime to most employees who work over 40 hours per week. Some employees are exempt, but most are not. One of the exemptions is for "creative professionals." The exemption is quite specific. Being an exempt creative professional involves  invention, imagination, originality or talent, as opposed to intelligence, diligence and accuracy. It also requires that the employer not exercise substantial control over the creative professional's work product.

Most print journalists are probably not exempt, because their work is subject to a significant amount of control by their employers. Journalists who perform on radio or TV, who do investigative interviews, who do opinion pieces, editorials or other commentary are probably exempt. On the other hand, a journalist who simply reads press releases over the air is probably not a creative professional. 

This is not the first case where journalists were found not to be exempt from overtime. A case in 2010 in California resulted in a $5.2 million verdict in favor of reporters of the Chinese Daily News. Unless the journalist does analysis of a news story, and their work is not subject to editing and other control by the paper, then they are probably exempt.   

Here’s what the Department of Labor says about this issue:

Relying upon federal case law, the final regulations clarify that employees of newspapers, magazines, television and other media are not exempt creative professionals if they only collect, organize and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product. For example, reporters who rewrite press releases or who write standard recounts of public information by gathering facts on routine community events are not exempt creative professionals. Reporters whose work products are subject to substantial control by their employer also do not qualify as exempt creative professionals. However, employees may be exempt creative professionals if their primary duty is to perform on the air in radio, television or other electronic media; to conduct investigative interviews; to analyze or interpret public events; to write editorial, opinion columns or other commentary; or to act as a narrator or commentator. Thus, journalists’ duties vary along a spectrum from the nonexempt to the exempt. The less creativity and originality involved in their efforts, and the more control exercised by the employer, the less likely journalists are to be considered exempt. There is no “across the board” exemption for journalists; nor has there ever been. Rather, each determination must be made on a case-by-case basis, as is the case with all job classifications. The majority of journalists, who simply collect and organize public information, or do not contribute a unique or creative interpretation or analysis, are not likely to be exempt.

If newspapers want to have exempt employees, maybe they should cut back on that editorial pen and let reporters choose the stories they want to cover. Since that will probably never happen, newspapers should be ready to pay overtime to their hard-working reporters.

Friday, March 1, 2013

Guest Post: Are Workplace Bullies Violating Criminal Stalking Laws?

Today we have a special treat. My associate, who now chooses to be anonymous, has written a guest post. This is his very first blog post. I think he did a pretty nice job. I hope he'll share some more insights with us here in the upcoming months. Here's his post, about a creative solution to the very common problem of workplace bullying:

Are Workplace Bullies Violating Criminal Stalking Laws?

by: Associate Attorney who now chooses to be anonymous

Does this sound familiar?: “My co-worker follows me around all day, every day, tormenting me, and waiting for me to make a mistake so she can report me to a supervisor?” Or, how about this?: “My boss berates me all day, every day. He just tells me I am worthless. I am a disgrace to the company. I should never have been hired. If it were up to him, he would prefer to see me on the streets.” Maybe you have stack of emails and attachments from a co-worker. The photos are of grotesque images that the co-worker sends to you on a daily basis because she knows you have a weak stomach and cannot handle the images.

This kind of mistreatment frequently happens at work with supervisors or coworkers. If I heard this story, I might say to you, “Yeah, you are right! That guy is a jerk! That guy is obnoxious! She is annoying! She is a BULLY!!” However, I would also tell you that no state has passed any anti-bullying laws, so you may end up with no remedy. Unless this bullying also amounts to sexual harassment, racial harassment, or other discriminatory harassment, there is likely no civil remedy for an employee facing workplace bullying. You may file a written complaint with H.R. or inform your supervisor, but you are not protected against retaliation if you do this. Chances are, this course of action will lead nowhere. You may have two possible choices: (1) suck it up or (2) start looking for a new job.

However, there may be recourse for a victim of workplace bullying, as long as the bullies’ behavior is criminally annoying, obnoxious, or rude. It just may not be recourse that a civil attorney can help out with. Why? Because it involves filing a criminal complaint, not a lawsuit.

So, if a co-worker or boss’s bullying rises to the level of criminality, you may be able to seek an injunction against their behavior by using your state’s criminal stalking statute. And, I am not talking about your friend Tony who is “criminally” annoying the way he always one-ups everyone. (“Hey Tony, I wrote my first blog post today!” “That’s nice Ryan! I have 50,000 followers on my blog site and am working on my third novel, entitled, ‘I am Just a Little More Awesome than You Are.’”). I am talking about those people who fit into the descriptions above, which behavior falls squarely within your state’s criminal stalking statute.

The Florida stalking statute provides, “A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree.” Sound familiar? If so, your workplace bully may be a stalker.

A violation of this statute may result in a definite term of imprisonment not exceeding 1 year. To harass someone under this statute requires “a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” And yes, your boss harassing you over your work is probably a “legitimate purpose,” no matter how petty you think she’s being.

In Florida, this statute has been successfully used by employers against disgruntled employees after disputes concerning unpaid wages escalated. It seems logical that this statute could be used by employees for protection against workplace bullies, including co-workers and supervisors. I was not able to find any case law where an employee did use the law to handle a workplace bully, but may be a last resort possibility for an employee whose daily existence at work has become dreadful. If your employer retaliates against youfor seeking a stalking injunction or filing criminal charges against a co-worker, then you could have a potential whistleblower retaliation claim in a civil lawsuit. If that happens, it may be time to talk to an employment lawyer in your state.

The Florida statute is very broad and could potentially provide a Florida bullying victims with some recourse against workplace bullies, allowing them to keep their jobs without having to suck it up and deal with bullies on a daily basis. Indeed, stalking, even aggravated stalking, can encompass acts that, in and of themselves, might fall short of prosecutable conduct. This means, “prohibited behavior under the statute encompasses both non-criminal and criminal behavior.” If you’re a bullying victim, it may be worth checking out your state stalking law.

Stalking is very real and very scary, which is why every state has stalking laws on the books. Although the first anti-stalking law was not enacted until 1990, the reality of stalking in the workplace is not a new concept. Almost a decade ago, attorney Janet Goldberg wrote, “An employee who fears a potential attack by a co-worker can use these laws to restrain that individual. For example, “stalking” laws in some states make it a criminal offense to engage in conduct that threatens another person’s safety.” Ms. Goldberg’s article was addressing workplace violence. However, the stalking laws discussed above are not limited to situations where a threat of violence is involved. In Florida, you do not need to fear a potential attack by the bully to be the victim of stalking. If there is such a credible threat, the bully could be charged with aggravated stalking, a felony. In fact, even aggravated stalking may be based on threats that fall short of an assault.

Some of the most unjust and frustrating circumstances are faced by employees who are simply trying to go to work without being harassed everyday by workplace bullies. I would love to hear from any lawyers or employees who have either used stalking laws in the employment context or who have defended against such a suit or criminal case. I would also like to hear about other strategies used by attorneys to assist clients in dealing with workplace bullies. The sad fact is, we need clear anti-bullying laws if we want to eradicate the workplace bully.