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, July 26, 2013

Can I Tape My Employer If I Have Poor Memory?

I got this question on an old but popular post, I Secretly Taped My Boss and Now I Want to Sue:

I have been telling my supervisor for months that I have a memory problem. He knew that I was working with a neurologist. I recorded a meeting with him where I anticipated finding out what my new job duties would be. I live in MD and was terminated for making the recording, even through I told them why I did it.

Hi Thisguyneedshelp. As I stated in my prior post, Maryland is an all-party consent state, meaning that your employer must consent before you are allowed to record them. In your situation, I think withholding consent might violate the Americans With Disabilities Act (ADA).

If your memory problem is caused by a disability, such as Alzheimer's, Parkinson's, or another medical or mental condition that substantially limits a daily life activity, then you are allowed to request a reasonable accommodation for your condition. If you told your employer you need to tape conversations so you can remember them, that's a request for a reasonable accommodation under the ADA.

If you've been taping conversations with their knowledge, then all of a sudden they fired you for doing so, then firing you for doing so may violate the ADA.

If, however, you secretly taped the conversation and they found out about it, you may be out of luck.

Here's what I suggest for people who want to tape conversations in an all-party consent state. Put the tape recorder on the desk in front of the person with whom you are speaking. Turn it on and say, "I'd like to tape this conversation. Is that okay?" If they say yes, then tape away. If they say no, turn it off. You could add, for future employers, "I'd like to tape this conversation to accommodate my memory issues. Is that okay?"

If you were fired for taping without the employer's consent, then Maryland, like every state except Montana, is an at-will state. That means you can be fired for any reason or no reason at all (with exceptions). You can't be fired because of a disability, race, age, sex, religion, national origin, or other protected status. You can't be fired because you blew the whistle on illegal activity of the company, made a worker's comp claim, or took FMLA leave. Otherwise, they can fire you for a bad reason or no reason.

I'd suggest talking to an employment lawyer in your state about your rights.

Monday, July 22, 2013

Can I Sue a Lying Coworker?

I'm answering areader questions today.
Hello Donna,

I was fired last year based on lies a co-worker made to our employer. My former employer is now enforcing a non compete I was forced to sign prior to employment that doesn't allow me to work in my professional field anywhere the company does business, I have had numerous job offers resented due to the non compete. Plus they have stated the process to sue me in federal court without any proof what so ever as there is nothing to prove. I won a transfer to my home state, and am awaiting a court date to dealing with these false charges.

What can I do about the co-worker that lied and caused my termination? Slander suit or civil? I am still unemployed, broke and now facing foreclosure along with mounting stress of all this I have gain 20 pounds, don't sleep very well. Your thoughts on counter suing employer or co-worker?

Thanks Unemployable 
Hi Unemployable. I'm sorry this is happening to you. I get lots of questions about filing defamation (slander/libel) claims against coworkers and supervisors. In general, it's usually not worth the hassle. First of all, your coworker probably isn't wealthy, and even if they are, they may not be collectable. You might get a judgment for a gazillion dollars against them, but so what? If you can't collect, what's the point?

Now, let's talk a bit about slander and libel. You would need to prove a false statement of fact, not opinion. Examples of false statements of fact: "Joe stole $100 from the cash register;" "Jane is a child molester;" "Artie was arrested for embezzlement." Examples of opinion that probably will never be defamation: "Joe didn't fit in;" "We decided to go a different way;" "Artie's performance wasn't up to our high standards." In between, there are lots of shades of gray. Here in Florida, I find the courts absolutely hate defamation cases by employees. You'll want to check with an employment lawyer in your state about your rights if you decide to pursue something against your coworker.

Next, you'll have to prove the statement was "published" to a third party. All this means is it was said to someone besides you. Here's where it gets tricky. A corporation is a "person" for most legal purposes. If a corporation publishes a statement to itself, that's probably not defamation. If a coworker reports something to her boss, HR puts something in your file, or your supervisor announces your discipline to the corporate Board, that's probably not a publication.

You'll also encounter the sticky issue of "privilege." Some statements are going to be covered by an "absolute privilege," meaning that they'll never be defamatory. These can include statements made in a legal proceeding like a deposition, court testimony or an unemployment hearing. Statements made to police are likely privileged. Some privileged statements are under a "qualified privilege," meaning you can overcome the privilege if you show that the statements were made with malice or were published beyond the circle of people who needed to know. Examples of qualified privilege would be statements made to an employer in a sexual harassment investigation and statements made to a government agency as part of an investigation. In some states, job references are somewhat privileged. However, if an employer deliberately gives out false facts about you, that's probably still defamation.

Whether your company will be liable for your coworker's statements will depend on whether those statements were  made within the scope of that person's employment. For instance, if an HR person gave false information to a job reference based on what is in your file, the company may be liable. It's difficult to get courts to hold a company liable for an intentional wrongdoing of one of its employees. Mostly, they'll say it was done for some individual purpose and not a company purpose, so was outside the scope of employment. If the company president or someone who can bind the company by their actions defames you, the company may also be liable.

Since the statements by your coworker cost you a job, you'll certainly be able to prove damages. If you think you have a defamation case, definitely talk to an employment lawyer in your state.

Friday, July 19, 2013

More Answers To Your Noncompete Questions

I'm still getting lots of questions on noncompete agreements. Here are some of your questions, and my answers:

Bounced Checks, Unpaid Overtime, and Selling Company

Hi Donna
I work in jackson Wyoming in decorative concrete work I signed a non compete with my employer and he has been dropping the ball by bouncing payroll checks not only to me but to vendors and so on. I just found out he is trying to sell the company and a lot of his clients are asking me to do their future jobs what do i do or can i do to be out of this mess. Oh and he has decided to not pay overtime and bank our hours even though we refused because we never collect them all.

Hi DJ. I'm not sure about Wyoming, but in many states failing to pay all wages due, which would include those bounced checks and overtime, would be a defense to enforcement of your noncompete agreement. You should talk to an employment lawyer in your state about collecting what's owed to you, and about how to defend against your noncompete. To collect those unpaid wages, you could also contact the Department of Labor for help. Just remember that they are a very busy government agency.

As to the company being sold, it will depend on your state law and what your noncompete agreement says. If the agreement says the company can assign the agreement, or that it applies to their successors, then you may be bound even if the company is sold. Again, this will depend on your state's law. In Florida, companies didn't used to be able to assign noncompetes. Now they can.

The other issue about a sold company will be whether they continue in your line of work. If a company abandons a line of business, a geographic area, or specific customers, they have no legitimate interest to protect in keeping you from working in those lines, areas or for those customers.

Company Moved

Question: I signed a non compete in Kansas, and my company moved to Missouri. Is this enforceable now?
Private Investigator
Hi Private Investigator. As I mentioned to DJ above, it will depend on the facts. If your contract says that you can't compete in Kansas and the company no longer does business in Kansas, they'll have a hard time showing they have a legitimate interest to protect. However, if they do business nationwide and continue servicing Kansas customers, then the agreement may still be enforceable. Depending on your state law, you may have a defense if you're fired without cause or laid off due to the move. Here in Florida, that would not be a defense.

Sign Or Be Fired, Then Hours Cut

Hey, I live in ohio and im currenlty under a non compete for demolition and asbestos abatement. I basically forced to sign when he said "sign or I cant employ u any longer" since then my hours have dropped off the charts only receiving 16-24 hours a week making 13 $/hr, clearerly not enought to provide for my 16 month old son! I feel like I could some how get out of the non comepte due to the lack of hours provided but I dont know.

 Hi Chris. Some states don't allow employers to coerce you into signing by saying, "Sign or be fired." They require additional consideration, such as pay increase or promotion. However, states like Florida say that continued employment is sufficient consideration for a noncompete. Pretty crappy, huh?

In your case, however, it sounds like your employer knew they were going to cut your hours when they demanded you sign. That sounds like fraud in the inducement to me. It might be a defense to enforcement of your noncompete agreement. You should talk to an employment lawyer in your state about your rights.

Friday, July 12, 2013

Beware the Dark Side: "But For" Doesn't Mean "Sole Cause" In Retaliation Claims

The management-side bar celebrated when the Supreme Court ruled in University of Texas Southwestern Medical Center v. Nassar that Title VII retaliation claimants must prove that retaliation was not just a motivating factor, but the "but for" cause of the retaliation. While I'm all for a good celebration, I wouldn't break out the champagne yet if I were on the dark side. (Heaven forbid. As Luke Skywalker said, "Never. I'll never turn to the Dark Side.")

For any type of discrimination other than age, and now retaliation, employees must prove that discrimination was either a substantial or a motivating factor in whatever action the employer took against them. This leads to a tortured analysis the courts use in "mixed motive" cases, where the employer had more than one reason for their actions. If the employee proves discrimination was a substantial or motivating factor, the employer can show (not actually prove, mind you) a legitimate reason for their actions. Then the employee must prove (not just show) that the reason given was pretextual (phony, made up, a load of cr**), and that the real reason was discrimination. Then the employer gets to come back and prove it would have made the same decision even if it hadn't discriminated. Whew! That's a whole lot of confusion to explain to a jury, and I'm over-simplifying it. No wonder employers like it. But having a confusing standard wasn't enough for the dark side.

Instead, they pushed the courts to establish an even tougher standard. What the Supreme Court came up with in Nassar was the "but for" standard. That is, but for the discrimination, the employer wouldn't have fired, demoted, refused to hire, etc. The majority opinion refers to "but for" as a tougher standard. But is it really? The dark side will try to claim that it means "sole cause." It doesn't.

Chief Justice Roberts (along with 3 of his conservative compatriates) complained in 2011 in CSX Transportation, Inc. v. McBride that the jury instruction the majority approved was the "but for" standard. He says, "The test the Court would substitute—whether negligence played any part, even the slightest, in producing the injury—is no limit at all. It is simply 'but for' causation.' He describes this scenario to demonstrate what he believes "but for" causation is:
For instance, if I drop a piano from a window and it falls on a person, there is no question that I was negligent and could have foreseen that the piano would hit some­one—as, in fact, it did. The problem for the Court’s test arises when the negligence does not directly produce the injury to the plaintiff: I drop a piano; it cracks the side­walk; during sidewalk repairs weeks later a man barreling down the sidewalk on a bicycle hits a cone that repairmen have placed around their worksite, and is injured. Was I negligent in dropping the piano because I could have foreseen 'a mishap and injury?' Yes. Did my  negligence cause “[the] mishap and injury” that resulted? It depends on what is meant by cause. My negligence was a “but for” cause of the injury: If I had not dropped the piano, the bicyclist would not have crashed. 
(citations omitted). He goes on to explain why he thinks the Court should impose more than "but for" causation. Yet Justice Roberts and the other three dissenters in CSX agreed with the majority in imposing "but for" causation in retaliation claims.

The instruction the Court in CSX approved was this: "Defendant ‘caused or contributed to’ Plaintiff’s injury if Defendant’s negligence played a part—no matter how small—in bringing about the injury." The majority commented that the cases CSX cited were proven by more than the "mere 'but for' causation." They rejected the concern that juries might utilize "far out 'but for' scenarios."

Does this "but for" standard sound like something that an employment plaintiff will have a hard time proving? Not to me. Will the four dissenters in CSX agree that this instruction fulfills their "but for" standard in retaliation cases? I'd certainly argue this is the instruction now applicable to retaliation cases.

You don't have to believe me on this. Courts interpreting "but for" in discrimination cases have said this about the standard:

  • “[T]he plaintiff's age must have 'actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome.'"
  • Statutory language “merely imposes a ‘but for’ liability standard” requiring showing only that the protected classification was “a determinative, rather than the sole, decision making factor.” 
  • “But-for” causation is defined as “a factor that made a difference in the outcome.” 
Let's look at how this should apply in a real retaliation case. Joe complains about being sexually harassed by a coworker. His supervisor wants to protect the coworker, so starts looking at Joe's work with a fine tooth comb. Joe is written up for picky things that his coworkers also do. He's fired for having 3 write-ups in a 90 day period. Sure, the picky violations are a "but for" cause. However, so is the retaliation. But for the supervisor's determination to retaliate, he wouldn't have started writing Joe up for these violations.

Here's another example. Jane complains about age discrimination. The company decides to get rid of her, so they audit all her recorded customer calls. They wouldn't normally have done the audit. They discover a call where she got terse with a customer and hung up. They fire her for violating standards of customer service. But for the age discrimination, she wouldn't have complained. But for the complaint, they wouldn't have done the audit. But for her violation, she wouldn't have been fired (or they'd have kept digging for something else). In my opinion, Jane wins on both the age and retaliation claims under the "but for" standard. She might not have won under the "mixed motive" standard. In this case, the Supreme Court may have done Jane a favor.

We'll have to see how this all plays out, but any defense lawyer who argues that "but for" means "sole cause" should be subject to sanctions for making a frivolous argument. I'd love to hear from any employee-side attorneys who manage to smack down such a silly argument. Does this mean that management-side won't try to push "sole cause?" No. Will the courts buy it? Stay tuned.I'll let you know if I hear of any cases on this one way or the other post-Nassar.

In the meantime, don't be afraid of the "but for" standard. Embrace it. As Yoda said, "Fear is the path to the Dark Side. Fear leads to anger, anger leads to hate, hate leads to suffering." Better yet, he said, "The fear of loss is a path to the Dark Side." So embrace the Force, and keep fighting the good fight.