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.

Tuesday, December 23, 2014

UPDATE: The Roll Of Shame: Some Florida Clerks Of Court Refuse To Issue Gay Marriage Licenses Despite Ruling

Why, why, why is it always Florida? In an issue similar to the hanging chads of yesteryear, Florida is in a state of confusion yet again, this time over gay marriage licenses. In every Florida county where a court has ruled on the issue, the courts have ruled that failure to marry gay couples violates the Constitution. Our Republican Attorney General, Pam Bondi, has thrown a tizzy of legal filings everywhere from counties that ruled to the 11th Circuit Court of Appeals to the Supreme Court.

Bottom line so far is that, while the 11th issued a temporary stay of the ruling compelling gay marriage licenses to issue, that stay ends January 5. They refused to extend it. The Supreme Court has also just refused to stay the ruling. So gay marriage becomes officially the law in Florida January 6. Right?

Here comes the confusion. A law firm, Greenberg Traurig (and shame on them), advised the clerks of court that they might face criminal penalties if they issue gay marriage licenses on January 6. They told the clerks that the case legalizing gay marriage only applies to Washington County. Other lawyers say they're dead wrong. I think they're dead wrong. Every single public official in Florida swears to uphold the Constitution. Refusing to issue the licenses violates the Constitution. If they aren't removed from office for refusing to uphold the Constitution in one of these lawsuits,

As a result, couples planning to get licenses January 6 will need to pay close attention to the law and legal wrangling over the next couple weeks.

Flagler County is the only county so far that has said it is definitely issuing licenses January 6. Kudos to Gail Wadsworth for upholding her oath. UPDATE: AP reports that Osceola County is the only county that responded affirmatively when they asked, so whether or not Flagler County will issue licenses is unclear. Orlando Mayor Buddy Dyer has announced he plans to officiate a wedding on January 6. Osceola County has been sued as a result of their announcement.

So far, the following clerks have indicated that they are "ready" to issue licenses January 6 (Whatever that means - are they going to do it? Still unclear):

Broward County
Monroe County

The Monroe County clerk says she wants to be the first clerk to marry a gay couple, so hopefully she'll actually do it and break the ice.

Collier County is still undecided. AP says 6 clerks are undecided, but didn't say which 6.

The following clerks' offices have said they will not issue gay marriage licenses January 6 (unless a court makes them do it), and thus are on my official Roll Of Shame (UPDATE: AP says 46 responded to them that they would not issue licenses, but they didn't share their list):

Miami-Dade County
Pinellas County
Hillsborough County
Pasco County
Hernando County
Lee County
Duval County
Manatee County
Flagler County
Brevard County

No official word yet from Washington County as to whether and whey they will comply with the ruling in the case that started all the confusion. Here's their website, if you want to follow the issue yourself. UPDATE: Last word was they were seeking clarification as to whether they had to issue one license, only to the couple who sued, or issue to anyone who applies. Facepalm. In the meantime, I'll keep updating you on this important issue.

Friday, December 12, 2014

States With Pro-Employee Laws: No Firing For Legal Off-Duty Activity

Here in Florida, like many states, you can be fired for pretty much anything as long as it isn't discrimination, whistleblowing, making a worker's comp claim or some other protected activity. That means you can be fired because your boss doesn't like your hobby, your friends, the fact that you prefer whiskey over beer - just about anything they don't like about your non-work activities.

Most states allow this kind of nonsensical firing, and business owners have to pay higher unemployment taxes as a result of other employers' whims. Taxpayers pay the cost too, in higher taxes due to the need for public assistance, healthcare and a whole host of other services. It makes no sense at all.

But some states have seen the light. They have laws that prohibit employers from firing employees for legal off-duty conduct. Do you live in one of these states? Here they are:
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California: CA Labor Code § 96 and 98.6 say no employee  no employee can be discharged or otherwise discriminated against for lawful conduct occurring during nonworking hours away from the employer's premises. An employee who is discharged, threatened with discharge, demoted, suspended, or discriminated against in any manner in the terms and conditions of his or her employment is entitled to reinstatement and reimbursement for lost wages and benefits.

Colorado: Colo. Rev. Stat. § 24-34-402.5 says it's illegal to fire an employee because that employee
engaged in any lawful activity off the employer's premises during nonworking hours unless the restriction relates to a bona fide occupational requirement or is reasonably and rationally
related to the employment activities and responsibilities of a particular employee or
a particular group of employees; or is necessary to avoid, or avoid the appearance of, a conflict of interest with any of the employee's responsibilities to the employer.

New York: N.Y. Labor Code § 201-d says employers can't make hiring or firing decisions, or otherwise discriminate against an employee or prospective employee because of legal use of consumable products or legal recreational activities outside of work hours, off of the employer's premises, and without use of the employer's equipment or other property.

North Dakota: N.D. Cent. Code § 14-02/4-03 (2003) says it's illegal  for an employer to fail or refuse to hire a person, to discharge an employee, or to treat a person or employee adversely or unequally with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or a term, privilege, or condition of employment, because of participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer.

Some other states protect employees against firing due to the use of lawful consumable products and others protect only tobacco use. Why not more protection? Do we really need Big Employer monitoring our off-duty activities? If you don't like the thought of being fired because your employer thinks you shouldn't eat meat, shouldn't smoke, shouldn't do yoga, or shouldn't be a furry, then it's time to push for legal change in your state.

Friday, December 5, 2014

States With Pro-Employee Laws: No Use-It-Or-Lose-It Vacation

You've probably seen the commercial. A kid says, in response to the study that over 400 million vacation days go unused, "That's the stupidest thing I ever heard." Yep. Stupid. Odds are, if you don't take those vacation days, you lose them.

Employers that have policies saying vacation is paid out at the end of employment must comply with those policies. In most states, employers can refuse to pay out unused vacation at the end of employment by implementing a use-it-or-lose-it vacation policy. Many employees are rudely surprised when they find out the employer that wouldn't let them use their vacation days also doesn't have to pay them out. Most employers can also require employees to use their vacation by a certain date, usually the end of the year, or lose it. That means you'd better use those vacation days in the next few weeks if you're like most employees.

However, some states protect their citizens by barring use-it-or-lose-it vacation policies. Here are some states that look out for their voters:
Before I tell you which states, I want to make a plug for you to vote for this blog in the ABA Blawg 100. I'm honored to announce that Screw You Guys, I'm Going Home is listed as the only employee-side blog in the Labor and Employment category, and now the voting is going on for the top blog in each category. It takes only a minute to register and vote. I'd sure appreciate your help. Now, back to the post.
California: Under Cal. Labor Code §227.3, all accrued vacation must be paid when employment ends. California also prohibits policies that make employees take vacation by a certain date or lose it. In one California case, an illegal policy cost the employer millions.

Illinois: Under 820 ILCS 115/5; 56 Ill. Adm. Code 300.520, employers have to pay out accrued vacation pay at the end of employment unless a collective bargaining agreement with a union provides otherwise. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. 56 Ill. Adm. Code 300.520(e).

Indiana: While employers can have a use-it-or-lose-it policy in Indiana, employers have to pay out accrued vacation if their vacation policy is silent on the issue. See Indiana Heart Associates, P.C. v. Bahamonde, 714 N.E.2d 309 (Ind. App. 1999); Die &Mold, Inc. v. Western, 448 N.E.2d 44 (Ind. App. 1983).

Louisiana: Vacation pay is earned wages, so policies requiring the forfeiture of earned vacation pay are not enforceable. Beard v. Summit Institute, 707 So.2d 1233 (La. 1998). However, they may implement use-it-or-lose-it policies saying employees must use by a certain date or lose the vacation.

Maryland: Like Indiana and Louisiana, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.

Massachusetts:  Employers have to pay out accrued vacation pay at the end of employment. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. MA Atty. Gen. Advisory 99/1.

Michigan: Similar to Indiana, Louisiana and Maryland, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.

Montana: In Montana, an employer can't take away earned vacation pay or fail to pay it out for any reason. MT Dept. of Labor and Industry FAQ; See Langager v. Crazy Creek Products, Inc., 287 Mont. 445; 954 P.2d 1169 (Mt. Sup. Ct. 1998).

Nebraska: Nebraska law prohibits employers from failing to pay out earned vacation or from policies saying employees must use vacation by a certain date or lose it. See Neb. Rev. Stat. § 48-1229(4); Roseland v. Strategic Staff Management, Inc., 272 Neb. 434, 722 N.W.2d 499 (Neb. Sup. Ct. 2006); Neb. Dept. of Labor FAQ.

New York: If the policy is silent on the issue vacation must be paid out at the end of employment.

North Carolina: If the policy is silent on the issue, vacation must be paid out at the end of employment. N.C. Gen. Stat. § 95-25.12.

North Dakota: Employers can't require an employee to forfeit accrued or earned vacation leave upon separation from employment, regardless of the reason. ND Admin. Code § 46-02-07-02(12). However, they can implement policies saying vacation must be used by a certain date or be lost.

Ohio: While use-it-or-lose-it policies are allowed, vacation must be paid out at the end of employment if the policy is silent on the matter. See Fridrich v. Seuffert Construction Co., 2006 Ohio 1076 (OH App. 2006).

Oregon: Oregon is another state that allows such policies but requires employers to pay out vacation if the policy is silent on the issue.

Rhode Island:  Employers must pay employees who have completed at least one year of service for any vacation pay accrued in accordance with company policy or contract on the next regular payday for the employee when they leave. RI Stat. § 28-14-4(b).

West Virginia: If the policy is silent on the matter, vacation has to be paid out at the end of employment. See Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (WV Sup. Ct. 1999). Otherwise, employers are allowed to implement such policies.

Wyoming: In Wyoming, an employer cannot require an employee to forfeit accrued or earned vacation on leaving. WY Dept. of Employment FAQs.

Some vacation policies are an earned benefit under ERISA, so employers that have no use-it-or-lose-it policy and fail to pay out earned vacation may risk a lawsuit under ERISA.

If you want to know about your state's vacation laws, a great state-by-state summary is here. For more on employee benefits, read my article Top Nine Things You Need To Know About Your Employee Benefits.

Friday, November 28, 2014

States With Pro-Employee Laws: No Solicitation Of Employees Through Misrepresentation

I've written before about the possibility of suing an employer for fraud if they misrepresented the job. If you are lured into a job, specifically if you give up another job or move to accept the job, and the employer had no intention of keeping the promises they made, you may have a claim against them for fraud. However, any such claims have to be made under common law in most states. You may or may not succeed, depending on your state law and the facts of your case.

However, one state, California, thought it was so important to protect its citizens from this kind of employer misbehavior that they passed a law making it illegal for employers to solicit employees through misrepresentation.

The California Labor Code provides:

970. No person, or agent or officer thereof, directly or indirectly, shall influence, persuade, or engage any person to change from one place to another in this State or from any place outside to any place within the State, or from any place within the State to any place outside, for the purpose of working in any branch of labor, through or by means of knowingly false representations, whether spoken, written, or advertised in printed form, concerning either: (a) The kind, character, or existence of such work; (b) The length of time such work will last, or the compensation therefor; (c) The sanitary or housing conditions relating to or surrounding the work; (d) The existence or nonexistence of any strike, lockout, or other labor dispute affecting it and pending between the proposed employer and the persons then or last engaged in the performance of the labor for which the employee is sought. 
 971. Any person, or agent or officer thereof, who violates Section 970 is guilty of a misdemeanor punishable by a fine of not less than fifty dollars ($50) nor more than one thousand dollars ($1,000) or imprisonment for not more than six months or both. 
 972. In addition to such criminal penalty, any person, or agent or officer thereof who violates any provision of Section 970 is liable to the party aggrieved, in a civil action, for double damages resulting from such misrepresentations. Such civil action may be brought by an aggrieved person or his assigns or successors in interest, without first establishing any criminal liability.

I haven't found any other state that offers its working taxpayers this kind of legal protection. Why not? Maybe some legislators in other states can explain to me why they think it's okay to make someone leave their job by saying the position is a long-term one, but they're  really only looking to cover for someone out on maternity leave. Or they just want to lure a competitor's top salesperson over to get all their contacts, then dump them. Or they say the job is for a manager's position, but it turns out the job is for a much lower paid clerk's position. I've seen each of these situations play out in real life, so don't tell me it doesn't happen.

Maybe there ought to be a law in your state. Anyone listening in Florida?

Friday, November 21, 2014

Why You Probably Aren't Getting A $186 Million Check If You Sue Your Former Employer

If you're contemplating bringing a discrimination case against your former employer, you've probably been scouring the Internet for information. You also probably found the recent case where an employee who was the victim of pregnancy discrimination won a $186 million verdict against her employer. You may be seeing dollar signs. Surely your case is worth at least that much.

Or not.

Let's do a reality check. Here are just some of the many reasons why you probably aren't going to end up with a $186 million check from your former employer if you sue:

  • Your bosses didn't conspire to fire all the women: While the case had a single plaintiff, the evidence included testimony of a conspiracy to fire all the women. An interesting quote from the story about the case: "'Specifically, it was said to this district manager, women weren't worth a (expletive) to AutoZone. He was offered a promotion if he fired all the women at his stores,' said attorney Lawrence Bohm."
  • Your company probably didn't celebrate not having to promote women anymore: Another interesting part of this story is that the company had been under a settlement agreement that had just expired. "During the trial, her lawyers called a former district manager – an ordained minister – who described a meeting with high-level executives rejoicing over the expiration of a previous settlement agreement requiring AutoZone to promote women and track it."
  • There's no way this employee is getting a $186 million check: Sure, the verdict is nice. But the judge can reduce the judgment, and likely will. Then there are appeals where all or part of the verdict can get reversed. Even if all goes well, the company could go bankrupt or be uncollectable. If she wants to avoid years of appeals, she might settle. And let's not forget what is likely a 40% or so attorney fee, costs, and taxes.
  • You probably don't want to be in court for 8 years: She was demoted in 2006 and then sued. She was fired in 2008. I don't know about you, but if she was unemployed or underemployed for 8 years, that's an extreme hardship. Do you have the will and the patience to go back and forth to depositions, hearings and a trial for 8 years? What about 2 - 3 years of appeals, or more? Do you have the ability to pay the costs of court reporters, mediators, and other costs for 8 years of legal proceedings? Most people would say no to all these questions. 
  • Your facts are different: Every case is different. The facts of your case are different from everyone else's facts. Your witnesses and evidence are different. You can't compare yourself to the sky-high verdict cases that get all the big publicity. Most discrimination plaintiffs simply don't get that kind of money. 
  • You could lose: How risk-averse are you? Because nobody can guarantee what a judge or jury will do. You could get zero, or even end up paying the other side's fees and/or costs.
  • It was California: Unless you live in California, you won't get a California jury. California is unique in the level of workplace protections it provides. Jurors there are used to having rights. In most states, you'll have jurors who are resigned to having few workplace rights.

Going through a lawsuit is long, drawn-out and expensive. If you're thinking about suing, you need to prepare yourself realistically for what to expect, how long it will take, and that you could end up with nothing. I know it's fun to dream about lotto-sized verdicts, but talk to an employee-side employment lawyer in your state about your case to get a real assessment of your chances.

Friday, November 14, 2014

States With Pro-Employee Laws: Consideration For Noncompete Can't Be Continued Employment

Florida, like some other states, allow unscrupulous employers to present noncompete agreements to existing employees and say, "Sign or be fired." What does the employee get for agreeing not to work for a competitor for a year or two? Continued employment. That's it.

The effects of this can be pretty devastating. Say you left your job for a better opportunity. You start the new job and then, whammo! You have to agree not to work in your industry for 2 years, all your contacts belong to the new employer, and they can fire you a week after you sign. Fair? Heck no. Legal? Yes, in most states.

However, there are some states that just say no to allowing continued employment to be the sole consideration for a noncompete agreement. Last week I talked about some states that even require advance notice, prior to employment, of the noncompete. This week I'll talk about those states that don't allow employers to demand a signature without some real consideration.

Hawaii, Kentucky, Minnesota, Montana, New Hampshire, North Carolina, Oregon, Pennsylvania, South Carolina, Texas, Virginia, Washington, West Virginia, Wisconsin, Wyoming say that continued employment alone is not sufficient consideration for a noncompete or nonsolicitation agreement. In those states, employers must offer something extra, like specialized training, a promotion, a raise, a change to non-at-will status or other consideration for the noncompete or nonsolicitation agreement.

In Illinois, employees must be employed at least two years for continued employment to be valid consideration for a noncompete agreement.

There's a pending case in Wisconsin that will decide the issue. In Alaska the issue is still undecided.

As you can see, state law varies wildly (and it changes constantly). Talk to a lawyer who handles employee-side employment law in your state to find out whether or not your noncompete agreement is enforceable.

If your state is one of those that allows employers to walk in one day and demand a signature upon pain of firing, maybe it's time to talk to your state legislators about why they aren't protecting employees in your state.

Friday, November 7, 2014

States With Pro-Employee Laws: Advance Notice Of Noncompete Agreement

In most states, like my home state of Florida, employers can present employees with a noncompete agreement and demand it be signed on the spot. In states like Florida where continued employment is allowed as valid consideration for a noncompete agreement, there can be an obnoxious situation where an employee quits a job, and then, only after starting work, is handed an agreement and told to sign or be fired. The agreement might say they can't work in their industry for a year or two after they leave. At that point, the employee has little choice. They sign and are then fired a few months later and the burden is on the  taxpayers to pay out unemployment benefits and other government assistance because the employee can't get a job or even apply for one in their industry.

Fair? No. Legal? Yes, in most states.

There are some states that protect employees by requiring advance notice of a noncompete agreement. You'd think voters would rise up and demand such protection, but after this week's election results I guess I shouldn't be too surprised.

Here are some state laws that give protection to their citizens by requiring reasonable advance notice of a noncompete agreement:

Oregon: Oregon's statute § 653.295 says:

(1)A noncompetition agreement entered into between an employer and employee is voidable and may not be enforced by a court of this state unless:
(a)(A) The employer informs the employee in a written employment offer received by the employee at least two weeks before the first day of the employees employment that a noncompetition agreement is required as a condition of employment; or
(B)The noncompetition agreement is entered into upon a subsequent bona fide advancement of the employee by the employer.
 New Hampshire: New Hampshire's statute RSA 275:70 used to say: 
Prior to or concurrent with making an offer of change in job classification or an offer of employment, every employer shall provide a copy of any non-compete or non-piracy agreement that is part of the employment agreement to the employee or potential employee. Any contract that is not in compliance with this section shall be void and unenforceable.
          However, this year New Hampshire's legislature modified the law to say:
Any employer who requires an employee who has not previously been employed by the employer to execute a noncompete agreement as a condition of employment shall provide a copy of such agreement to the potential employee prior to the employee's acceptance of an offer of employment. A noncompete agreement that has not been disclosed to an employee as required by this section shall not be enforceable against the employee, but all other provisions of any employment, confidentiality, nondisclosure, trade secret, intellectual property assignment, or any other type of employment agreement or provision shall remain in full force and effect.

Connecticut's legislature passed a law that would require advance written notice that a noncompete would be required, but it was vetoed. Massachusetts tried to pass a law limiting noncompetes that would include an advance notice provision, but that effort failed. With a new governor of that state coming in soon, it's doubtful any limits will be passed anytime soon.

What's so unreasonable about giving advance notice that an employee is going to have to sign a noncompete agreement if they accept a job? Why don't other states pass laws preventing the "gotcha" that many employees face if they want to keep their jobs? Well, nothing will happen unless you stand up and fight for your rights. Unless voters demand change, most states will continue to allow this kind of employee abuse.

Friday, October 24, 2014

States With Pro-Employee Laws: Noncompete Agreement Hardship On Employee As Defense

Or, States That Don't Suck For Employees Part VIII

Living in Florida, one of the worst states in America for employees on noncompete agreements, I'm used to having to deal with a statute that says the courts cannot consider any economic hardship on the employee when enforcing noncompete agreements. Imagine my surprise when researching New York law to find that other states aren't so heartless.

If you live in Alabama, Arizona, DC, Delaware, Georgia, Illinois, Kansas, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, New York, Ohio, South Carolina, Tennessee, Utah, Vermont, West Virginia, Wisconsin, Wyoming, then your state courts will balance the hardship imposed on you when considering enforcing whether to enforce the noncompete.

Alaska has a similar defense, which is whether the employee's sole means of support is barred.

Of course, if you're lucky enough to live in California, noncompete agreements are rarely enforced there.

In a country where sandwich makers can be forced to sign noncompetes, it's time that the states that don't consider economic hardship on the employee wake up and protect their citizens.

Friday, October 10, 2014

States With Pro-Employee Laws: Work Breaks For Employees

 Or, States That Don't Suck For Employees, Part VII

Some people don't believe me when I tell them that no federal law requires any breaks for employees, but it's true. No lunch breaks, rest breaks or even bathroom breaks are mandated by law (and don't tell me about OSHA and bathroom breaks*). A majority of states also don't have any laws requiring breaks for anyone but minors.

Still, if you're lucky you might live in a state that has some laws requiring work breaks. Here's how it breaks down:
  • Meal breaks:  Only 20 states require any meal breaks. California, Colorado, New Hampshire, North Dakota and Washington require 1/2 hour within five hours of work. Connecticut and Delaware require ½ hour after first 2 hours and before last 2 hours for employees who work 7½ consecutive hours or more.Illinois, Kentucky, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New York, Oregon, Rhode Island, Tennessee, Vermont and West Virginia all have laws about meal breaks. In the other 30 states, employers are allowed to starve you.
  • Rest breaks: Only nine states require any rest breaks. California, Colorado, Kentucky, Nevada, Oregon and Washington require 10 minute breaks for every 4 hours of work. Minnesota and Vermont require reasonable bathroom breaks. Illinois also has rest break requirements but only for hotel attendants. All of these states also require meal breaks. 
If you aren't in one of these 20 states, you're at the mercy of your boss to be allowed to eat, go to the restroom, or just take a stretch. Yet I still encounter folks regularly in Florida (one of the no-breaks-for-you states) that get fired after insisting on their legal right to take their lunch or rest break.

True, most bosses won't actually make you have a potty accident, but there are sadistic jerks out there who will. You do have some rights though, despite this.

Disability: If you need regular meal or bathroom breaks due to a disability, then put in a reasonable accommodation request under the Americans With Disabilities Act and have HR mandate your breaks. If the boss still won't honor your approved accommodation, report him/her to HR. If the company won't accommodate you, you probably have a disability discrimination case.

Nursing: You're entitled to a break and a private place to express breast milk if you're nursing.

Sex discrimination: I ran into a woman who was told she couldn't take her purse to the restroom when she had her period. Men had no restrictions on what they could take to the restroom. Fortunately, she reported it and HR had the sense to stop this silliness immediately.

Obviously, if the employer is only allowing employees of a particular race, national origin, age or other protected category to take breaks, that's also illegal. I shouldn't say it's obvious though, because any boss who doesn't allow reasonable bathroom or meal breaks is a sadistic idiot.

*I know I said don't tell me about OSHA, but they really are supposed to make employers allow reasonable bathroom breaks. See OSHA Standard # 1919.141(c)(1)(i)
OSHA's sanitation standard for general industry, 29 CFR 1910.141(c)(l)(i), requires employers to provide their employees with toilet facilities:
Except as otherwise indicated in this paragraph (c)(l)(i), toliet [sic] facilities, in toilet rooms separate for each sex shall be provided in all places of employment in accordance with Table J-1 of this section .... [emphasis added]
This memorandum explains OSHA's interpretation that this standard requires employers to make toilet facilities available so that employees can use them when they need to do so. The employer may not impose unreasonable restrictions on employee use of the facilities." "The language and structure of the general industry sanitation standard reflect the Agency's intent that employees be able to use toilet facilities promptly." In light of the standard's purpose of protecting employees from the hazards created when toilets are not available, it is clear that the standard requires employers to allow employees prompt access to sanitary facilities. Restrictions on access must be reasonable, and may not cause extended delays.
So yes, OSHA does state that they require employers to allow prompt bathroom breaks. I wish you good luck in actually getting OSHA to enforce this standard though. At least in Florida, they'll probably refer you to the Department of Labor, which has nothing whatsoever requiring bathroom breaks under their jurisdiction.

Friday, October 3, 2014

States With Pro-Employee Laws: Ban The Box

Or, States That Don't Suck For Employees, Part VI

You may have heard the term “ban the box” but not know what it means. These laws generally prevent employers from asking about applicant arrests or convictions at the beginning of the application process, and only allow inquiries after the applicant passes their initial screening. Why? Because about 70 million Americans have some criminal record, and the majority of them are minorities. An entire class of citizens has been made almost completely unemployable due to criminal records that have nothing to do with their ability to do jobs.

Thirteen states, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Mexico, New Jersey, and Rhode Island, along with 67 cities and counties, have passed ban-the-box laws. Tampa and Jacksonville are just some of those cities. Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island have the only statewide laws applying to private employers. The rest apply to government employers.

Hawaii’s law was the first, and it prohibits employers from asking about criminal records until a conditional offer of employment is made (similar to what ADA requires for inquiries about disabilities). Since 1998, when this law went into effect, the incidence of repeat criminal offenses in Hawaii has dropped by 57%. Illinois law is similar to Hawaii’s.

New York’s law says employers can’t discriminate in the hiring process against applicants who have convications unless there’s a direct relationship between one or more of the previous criminal offenses and the employment sought, or if the employment would involve an unreasonable risk to others.

New Jerseys’s brand new law prohibits posting of ads saying those with criminal histories won’t be hired and from asking about arrests and convictions until the applicant is the top candidate selected. Then the employer must also consider factors like rehabilitation, good conduct, length of time that has passed, and how the crime relates to the employee’s suitability for the job.

Massachusetts’ law bans questions on written applications but not in interviews. If employers are going to refuse to hire based on a criminal record, they must first provide the applicant with a copy of the record.

Minnesota’s law is similar to Hawaii’s, but state law there also says government employers can’t discriminate unless the conviction is directly related to the job sought. It requires all employers to consider job-related factors in using criminal records.

Rhode Island’s law prohibits asking on written applications but employers can ask during interviews.

The ban-the-box movement is all about giving folks a fair chance. If they’ve done the time, let them get on with their lives. Americans usually like to give people a fair second chance, so let’s do that for the 70 million Americans who have criminal records. If we’re like Hawaii, letting people with records get paying jobs will drastically reduce repeat criminal offenses.

Friday, September 26, 2014

Your Employer Wants To Indoctrinate You With Their Politics

I recently found out about an organization called the Job Creators Network, which some big CEOS are involved in like Roger Ailes (you know, Faux News), David Hernandez of Liberty Power (formerly with, Enron), and other big corporate heads. Their major goal in life seems to be to indoctrinate employees into voting against their own interests.

Well, that's not what they say. They say:
America’s employees, particularly non-union employees, are an untapped reservoir of support for free enterprise. Job Creators Network’s E2E Communication Program leverages employee support by providing employers across America with the tools, materials, and guidance they need to educate their employees about the impact of government policies on their jobs, pay, benefits and families. E2E promotes a better-informed public by educating employers about information they can legally provide to their employees. A well-informed public is the best defense against bad public policy.
That's right. Your employer is going to do you the huge favor of telling you how to vote. They want you to be well-informed. They have an Employer To Employee Communications Program with a toolkit for employers to explain how to "educate" you on important issues.

They have a helpful website for employers to relay their political message to employees. Here's a good summary of the message. Unions = Bad. Minimum Wage Increases = Bad. Affordable Care Act = Bad. Regulations = Bad. Personal Injury Suits = Bad. Employers = Good. Big Business = Good. Let's reduce taxes on your poor boss and eliminate those nasty unions, regulations and employment laws.

If you buy into this, I have some land to sell you west of me (west of me is the Everglades). I find the whole concept of employers indoctrinating employees in politics terrifying. They have you captive, and now they get to fling propaganda at you at will. If they have their way if you complain about your exploding Pinto you'll have to do indentured servitude at Ford for 10 years as punishment for your chutzpah. We'll be back to company stores, locked fire-hazard sweat shops, and child labor in no time.

You can expect the indoctrination to ramp up as we get closer to the elections. If you want real information about how some of these issues affect employees and don't want to buy into the big corporate propaganda, here are some places you can look to get pro-employee information.

Of course, you can always check here if you want to know what's the latest in employment law. You can also check out my weekly column over at AOL Jobs.

Don't buy what your employer tells you is best for your wallet. They care about what's best for their wallet, not yours. Educate yourself and get informed about the issues before you vote.

Friday, September 19, 2014

States With Pro-Employee Laws: Domestic Violence Victim Workplace Protection

Or, States That Don't Suck For Employees Part V

Massachusetts was the latest state to enact a law requiring employers to give victims of domestic violence time off work without penalizing them. Since I frequently raunch on Florida for being so anti-employee, I decided to write today to give my home state props for being one of sixteen states that have laws protecting employees who become domestic violence victims.
  • 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 Jersey's law, passed last year, 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.  
  • 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.
  • 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.
  • 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.
  • Washington DC has a sliding scale for leave depending on how large the employer is.
  • 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
  • Kansas law says employers can't discriminate against domestic violence victims who need time off.
  • Maine law grants reasonable protected domestic violence leave.
  • 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.
  • Oregon requires employers with 6 or more employees to grant reasonable leave and prohibits discrimination. Portland also requires protected domestic violence leave.
  • Rhode Island prohibits discrimination.
  • Washington provides reasonable leave. Seattle has its own leave ordinance and also bars discrimination.
  • Philadelphia provides leave depending on the size of the employer.
A proposed federal law to protect domestic violence victims from discrimination at work went nowhere. Wouldn't it be good to have some uniform protections? Who the heck is against protecting domestic violence victims? Do we really think that getting beaten up should be grounds for termination? 

A pretty good summary of state laws up through June 2013 is here. It should also be noted that many states have laws protecting crime victims from being punished for missing time from work to testify in criminal proceedings.

Friday, September 12, 2014

States With Pro-Employee Laws: Paid Sick Leave

Or, States That Don't Suck For Employees, Part IV

Oh, sure, if you're lucky enough to qualify for Family and Medical Leave, you may or may not get some paid time off if you have a serious medical condition. You're paid under that law if you have any paid sick leave or vacation time, and then the rest of the leave is unpaid. However, whether or not you get any paid sick time is up to your employer.

That is, unless you live in a state beginning with the letter C.

California became the second state in the nation to mandate paid sick leave under the law signed this week. Most employees will accrue three paid sick days per year, at the rate of one hour for every 30 hours worked. San Francisco and San Diego already had a mandatory paid sick leave ordinance in place.

Connecticut was the first state to mandate sick leave. Employers with 50 or more employees, unless they are non-profits, must provide 1 hour of sick leave per 40 hours worked, up to 40 hours per year of paid sick time to service workers.

Massachusetts may break the C trend because voters there will get to approve a paid sick leave law when they vote in November.

Five cities in New Jersey have paid sick leave ordinances. So have two cities in Oregon. New York City has a paid sick leave law, along with Seattle and Washington, D.C.

The U.S. is the only major Western country without any law requiring paid sick leave for employees. Of 22 countries studied, we are the only country that provides zero paid sick leave for a worker undergoing a 50-day cancer treatment and we're 1 of only 3 countries that does not provide paid sick days for a worker missing 5 days of work due to the flu.

Making workers come to work sick is bad for everyone. It spreads illness and results in crappy morale. Hopefully more states (or even Congress) will wake up soon.

Friday, September 5, 2014

States With Pro-Employee Laws: Crackdown On Misclassification

Or, States That Don't Suck For Employees, Part III

With wage theft rampant and employers trying to figure out ways to not pay employment taxes (and avoid application of employment laws), many employers try to say, "Boom! You're an independent contractor now." They shove an independent contractor agreement in front of an employee and stop paying employment taxes. The employee is told to take it or hit the road.

While the handy-dandy SS-8 form that IRS has is a good tool for employees to force employers to correctly classify them, some states have taken larger steps to protect employees against greedy employers who break the law. Here are some states that have stepped up to stop misclassification:

Misclassification is a serious problem for employees, but it also hits the states and taxpayers in the wallet in the form of unpaid taxes, unemployment compensation contributions, and worker's compensation premiums. I don't understand why every state isn't cracking down on misclassification, so maybe someone can explain it to me. Any legislators out there want to tell me why they're pro-misclassification?

Friday, August 29, 2014

States With Pro-Employee Laws: No At-Will Employment Equals Fewer Employee Suits

(Or, States That Don't Suck For Employees, Part II)

I was doing some research for this series on pro-employee state laws and ran across a piece by that bastion of liberalism, the U.S. Chamber of Commerce rating states either Good, Fair or Poor for employers. It's been a fantastic source of information for my upcoming pieces in this series, since all I have to do is look for the "Poor" rated states to find a rant about their pro-employee laws.

What I found most interesting, though, was what they wrote about Montana. Montana is notable as the only state in the nation that requires just cause for employers to terminate employees. It's the only non-at-will state, which is something I frequently mention when I write or speak about employment law. Almost as an afterthought, the U.S. Chamber says this about Montana:

The state is also among the nation’s leaders in the fewest number of labor and employment lawsuits filed per 10,000 employees.
Really? So not only did Montana not fall off the map under the weight of employee suits by employees claiming they weren't fired for just cause, but they have fewer employee suits than places like Florida that it rates "Good" for employers due to the utter lack of pro-employee laws. Here's what they say about supposedly pro-employer Florida:

Perhaps the most surprising element of Florida’s generally favorable labor and employment-law climate is its litigation problem. The state has an extraordinary number of labor and employment related lawsuits, with 5.69 such lawsuits filed per 10,000 employees. Only Alabama has a higher ratio.
Alabama, by the way, is also rated "Good" for employers.

Hmm. So states that allow employers to be jerks to employees at-will have more employee suits, and states that make employers treat employees decently have few employee suits. Coincidence? I think not. I think if you treat a person decently they're much less likely to sue you. Doctors have found that out, so when will employers learn?

Treating employees like stuff at the bottom of your shoe equals more lawsuits. Treating employees will and firing only for just cause equals fewer lawsuits.

Are any legislators listening?

Friday, August 22, 2014

States With Pro-Employee Laws: Discrimination Against Unemployed

(Or, States That Don't Suck For Employees)

I have the sad duty of informing my clients pretty much daily just how bad Florida law is for employees. It's pretty depressing how few legal protections my home states offers employees. So I thought I'd periodically celebrate some states that actually have laws protecting employees. Today, I'm celebrating the states that have enacted laws protecting the unemployed from discrimination.

During the not-so-Great Recession, some help-wanted ads started popping up saying only those already employed need apply. While it had always been illegal to discriminate against the unemployed, going this blatant backfired on employers. Public and media outrage ensued and New Jersey became the first state to make it illegal to discriminate against the unemployed. 

New Jersey's law actually only makes it illegal for employers  to advertise that they'll only hired the employed, but doesn't make it illegal to refuse to hire the unemployed, and prospective employees can't sue for violations. Still, it's an improvement. At least the long-term unemployed don't have to see their plight in print when looking through the classifieds.

Oregon, DC and Chicago soon followed with similar legislation that prohibited advertising but not actual refusal to hire the unemployed. A number of states tried and failed to pass legislation prohibiting unemployment discrimination.

Along came New York, a city that never sleeps on worker rights, and passed a law not only prohibiting unemployment discrimination but allowing aggrieved applicants to file a complaint with the city's Commission on Human Rights or sue, including bringing a class action. Madison, WI has also passed a similar ordinance.

Not to be outdone, New Jersey legislators passed another bill, this one actually prohibiting using the fact of being unemployed in employment decisions, but Gov. Christie vetoed it. Federal legislation proposed to help protect the unemployed against discrimination failed.

Why should all taxpayers push to make unemployment discrimination illegal? Because we have a huge problem with long-term unemployment, and it is getting worse. If you've been unemployed 6 months or more, your chances of getting a job drop drastically. Who bears the brunt of this? Taxpayers. As these folks lose their homes, file for bankruptcy, and apply for public assistance, we're paying for this employer nonsense. 

Can anyone show me a single data point saying being unemployed has anything at all with a person's ability to do a job? How is this the unemployed person's fault? Why should we, as taxpayers, have to pay for hiring managers' wild hair idea carried over from their middle school days that a person is only worthwhile if someone else has them?

Kudos to the states and cities that have passed laws to help their citizens with this employer-created problem. Will my home state and other states that allow employers to trash their economies with this nonsense wake up?

Friday, August 15, 2014

"Jail 'Em" Says Pennsylvania Senator About Employers Who Misclassify

I've written here recently about the one-sided Criminalization of Employment Law. It seems that employees are getting tossed in jail while scofflaw employers sail off in their yachts laughing at the 99%. Well, at least one state Senator is doing something to balance things out.

Senator Mike Stack has proposed a bill in Pennsylvania to toss employers who misclassify employees in jail. Employers who declare employees to be independent contractors are illegally avoiding paying worker's compensation premiums, overtime and employment taxes, and at least Senator Stack is doing something about it.

Pennsylvania already has a law, as do many other states, providing civil penalties to employers who misclassify, but it isn't working. Employers are wiping their collective you-know-whats with this law and the Fair Labor Standards Act. Some states have cut deals with the Department of Labor to help enforce these laws. However, Pennsylvania reports that only 1/3 of pending cases have been resolved.

This new proposed law will allow prosecutors to step in and press criminal charges against recalcitrant employers. Stack said this about the need for the law: “Pennsylvania’s record of enforcement is a disservice not only to working families, but also to every taxpayer in the state. Federal officials understand that misclassification of workers means payroll taxes are not withheld, resulting in reduced tax collections. Everyone pays while a few benefit.”

While some state and local governments have passed wage theft laws cracking down on nonpayment of wages, wage theft remains rampant. Some municipalities have tried to deny licenses to thieving employers. Some states are finally passing laws that allow prosecution of wage thieves, but they're a small minority. There have been some prosecutions, but employers landing in jail are few compared with employees being prosecuted for trade secrets, eating cookies, blowing the whistle, and being disloyal.

This proposed bill in Pennsylvania may help balance the equities. After all, it hurts legitimate businesses, taxpayers and voters to have employers running around evading taxes, injuring employees without having insurance, and not paying wages. Will legislators in other states (yeah, I won't hold my breath in Florida) follow suit? Will we finally start demanding these corporation-persons be held accountable for their misdeeds?

Stay tuned.

Friday, August 8, 2014

President Obama Orders Contractors To Disclose Labor Violations, Stop Mandatory Arbitration

In a gutsy and controversial move, President Obama signed an executive order placing new tough restrictions on federal contractors. If your employer contracts with the federal government it may have to disclose all labor violations in order to bid, and also have to stop mandating arbitration of employment disputes.

The pre-bid disclosure language is tough. It requires anyone bidding for a contract of $500,000 or greater to disclose:
[A]ny administrative merits determination, arbitral award or decision, or civil judgment, as defined in guidance issued by the Department of Labor, rendered against the offeror within the preceding 3-year period for violations of any of the following labor laws and
Executive Orders (labor laws):
(A) the Fair Labor Standards Act;
(B) the Occupational Safety and Health Act of
(C) the Migrant and Seasonal Agricultural Worker
Protection Act;
(D) the National Labor Relations Act;
(E) 40 U.S.C. chapter 31, subchapter IV, also known as the Davis-Bacon Act;
(F) 41 U.S.C. chapter 67, also known as the Service Contract Act;
(G) Executive Order 11246 of September 24, 1965
(Equal Employment Opportunity);
(H) section 503 of the Rehabilitation Act of
(I) 38 U.S.C. 3696, 3698, 3699, 4214, 4301-4306, also known as the Vietnam Era Veterans' Readjustment Assistance Act of 1974;
(J) the Family and Medical Leave Act;
(K) title VII of the Civil Rights Act of 1964;
(L) the Americans with Disabilities Act of 1990;
(M) the Age Discrimination in Employment Act of
(N) Executive Order 13658 of February 12, 2014
(Establishing a Minimum Wage for Contractors); or
(O) equivalent State laws, as defined in guidance issued by the Department of Labor.
This means employers won't be able to hide under the confidentiality of arbitrations any longer. They'll have to disclose safety violations, unpaid wages and discrimination/retaliation violations. Employers won't have to disclose settlements, so this will be an extra incentive for them to resolve claims quickly.

The arbitration language will be pretty easy for employers to get around. It only applies if the bid is for a contract of $1 million or more, and it doesn't apply if the employee has an arbitration agreement in place before the bid is made. You can expect employers to start racing around demanding employees sign arbitration agreements right before the bid goes out. However, employers whose contracts say they can change the terms of the contract (which most of them say) will still be out of luck on mandatory arbitration, so you may still be able to force them into court.

There are some other nice provisions of this order, like paycheck transparency and providing guidance to contractors to help them improve, so if you want to see the whole order, it's here.

This order comes on the heels of orders requiring contractors to pay a minimum of $10.10/hour, stop discriminating based on sexual orientation, and stop retaliating against employees who compare and discuss pay.

The message is clear: the United States is going to stop wasting taxpayer dollars on companies that don't comply with U.S. laws. It's about time.

Wednesday, August 6, 2014

Fourth Florida Court Recognizes Gay Marriage

Adding to the landslide of cases coming down in Florida, a Palm Beach court ruled that it must recognize a Delaware same-sex marriage. In this case, another silly result from Florida's constitutional amendment banning recognition of same-sex marriages was that a widower couldn't be designated as a personal representative for his spouse's estate.

“There is no justification in denying Mr. Simpson the privilege of acting as the fiduciary, based solely on the gender and sexual orientation of his now-deceased spouse,” ruled the judge.

No clerks of court have started issuing marriage licenses in Florida, and all the cases are stayed pending appeal. I'll keep you posted here of the latest developments.

And now that I have your attention, I want to remind you that the American Bar Association's nomination period for the ABA Blawg 100, in which this blog has had the honor of being included the past several years, ends Friday at 5 p.m. Eastern time. The nomination form is here. If you enjoy my posts, I'd sure appreciate your nomination. They'll ask you for some links to posts you liked. Some I can suggest are:

When Is A Company A Joint Employer With Its Franchise Operators?

Tuesday, August 5, 2014

Third Florida Court Strikes Gay Marriage Ban (But No Licenses Being Issued Yet)

Broward County Circuit Judge Dale Cohen ruled Monday that the silly Florida constitutional amendment saying Florida won't recognize gay marriages done in other states is unconstitutional. No surprise there. In this new case, Judge Cohen couldn't grant a divorce without first acknowledging there was a marriage. The amendment would force gay couples who move to Florida to be trapped in marriages. Can you say Full Faith and Credit?

The ruling was stayed, just like the ones in Key West and Dade. In the meantime, folks on both sides of the issue are pushing for the Florida Supreme Court to weigh in on the issue.

I'm still waiting for some brave clerk of court to start issuing licenses, but none have yet. I think it's their duty as officers who obey the constitution to issue marriage licenses to gay couples. If couples do apply and are turned away, they may have some nice legal claims since the clerks are on notice that failure to issue is a constitutional violation. Stay tuned.

Friday, August 1, 2014

When Is A Company A Joint Employer With Its Franchise Operators?

The National Labor Relations Board made a finding that has caused management-side employment lawyers to blow several gaskets, namely, that McDonald's is a joint employer with a franchise owner and is thus responsible for labor law violations that occurred in a McDonald's workplace. And you're thinking, "duh," right? I mean, why wouldn't McDonald's be responsible for what happens in a McDonald's?

As with everything else in my chosen profession, it's not that simple. For many years, corporations have escaped liability for discrimination, labor law issues, overtime and unpaid wages by pointing the finger at the poor schmo who bought a franchise from them instead of manning up and taking responsibility for what happened under their name. (And yes, I said "manning," which could be sexist, but if companies are people and what kind of people is based on who is on the board, then almost all corporations are male people, aren't they?)

In general, two employers are considered joint employers if both exert significant control over employees. There are lots of complicated tests for this that make sense only to lawyers. I've pretty much always thought that franchisors (the parent companies) should be considered joint employers under most of these tests, but the companies have frequently managed to escape liability.

In the McDonald's case, employees were able to show that McDonald's provides software to franchise operators that tells them how many employees should work at any given time, and that the company also weighed in on how much employees should be paid. I can also point to some other types of control these parent companies have. They frequently train employees or provide training materials, provide uniforms, inspect uniforms, decide the very specifics of how employees are to do their jobs all the way down to portion size and customer greetings, send secret shoppers to gauge how employees are performing, and exercise other control over these employees.

Why do we care? Two reasons:

  • Deep pockets: While the small company that bought the franchise may be tiny and barely solvent, the mega-parent companies can usually pay big bucks judgments.
  • Counting employees: Federal discrimination laws don't cover employers with fewer than 15 employees. Family and Medical Leave Act doesn't kick in unless the employer has 50 employees within a 75 mile radius of the employee work location. There are quite a few employment laws that require minimum numbers of employees. If you can count all the franchises and parent-owned entities, you can count to 15 or 50 pretty easily, which means liability on both parent and franchise owner.

This ruling will have parent companies scrambling to exercise less control over franchise operations, which, in my opinion, is penny wise and pound foolish. If you can't count on all McDonald's restaurants looking the same, serving the same quality food and having employees look and act the same, they lose their brand. Instead, companies should be scrutinizing their franchises to make sure they are complying with employment laws instead of saying, "It's not my problem."

Saturday, July 26, 2014

Miami-Dade Court Rules In Favor Of Gay Marriage

As I predicted yesterday in my post about the Key West ruling favoring gay marriage, the other Florida courts that have cases pending on same-sex marriage are starting to rule. Miami-Dade Judge Sarah Zabel ruled yesterday (after my blog post) that denying gay marriage violates the Equal Protection Clause of the U.S. Constitution.

Don't rush to Miami yet. The judge stayed her ruling pending appeal.

Will any Florida clerks of court have the guts to start issuing licenses because they swore to uphold the U.S. Constitution? The BoulderDenver and Pueblo Colorado clerks did. Stay tuned.

Friday, July 25, 2014

Now That Florida Has Gay Marriage, How Does That Affect Employee Rights?

Okay, okay. I know we don't have gay marriage in Florida quite yet. The July 17 Florida ruling on gay marriage only applies to the Keys, and it's stayed pending appeal. Still, there are multiple cases pending around the state, and it's only a matter of time before someone starts issuing licenses and performing marriages.

How does that affect employee rights? There are several ways Florida employees and employers will be impacted once gay marriage starts happening in Florida, so start preparing now:

Family and Medical Leave: Because FMLA applies to leave for care of spouses, Florida employers will have to start granting leave for gay employees who are married. If you have a sick partner and are married, you may qualify for FMLA leave, assuming your employer is large enough and you've been there at least a year. Start gathering those forms and have them ready for your spouse's doctor to fill out so you can put in for leave once you're married if your partner is sick.

Pensions: Spousal benefits will have to be updated to include gay married couples. You will need to make sure you adjust any defined benefit plans if you want to include your new spouse.

Benefits: Health and life insurance will have to be updated to include spouses of gay employees. If your new spouse needs coverage, you need to contact HR to get them on the plan ASAP.

Marital status discrimination: While it still isn't illegal in Florida to discriminate based on sexual orientation, except in some counties and cities, it will be illegal to discriminate against employees just because you don't believe in gay marriage or don't like that they married a same-sex partner. If your employer starts treating you differently after your marriage, you may have a discrimination claim.

Tax filing status: Once you're married, you'll be able to update your tax filing status and employers will have to deal with updated W-4 forms with revised withholdings.

Confidentiality: If you have an agreement that says it can't be disclosed to anyone but your spouse, you may now disclose it to your married partner. This is one of the things I always have to caution unmarried couples, gay or straight about. You could be severely sanctioned if you tell a boyfriend/girlfriend/partner about, say, how much severance you got. All they have to do to mess you up is tell the employer they know what you got and all hell will break loose. Once you're married, you can probably tell and not be sanctioned for it.

Privilege: I absolutely hate having to exclude gay partners from attorney-client meetings, but it's necessary so there's no waiver of attorney-client privilege. Once you're married, your spouse can attend even attorney-client meetings with your permission.

Start planning now, because it's going to start happening very soon. Have your plan in place as to how you will protect your spouse before you say, "I do." And Florida employers, best have your management-side lawyer start updating your policies and forms to make sure you aren't caught flat-footed.

Monday, July 21, 2014

Do I Have Workplace Rights If I Work In An Indian Casino?

An AOL Jobs reader asked:
I work security at an Indian Casino in California. I'm not sure how state overtime laws apply to Indian Casinos, but my workplace requires me to arrive early, get in uniform and clock in before I'm scheduled to start (no more than seven minutes prior to start). And if we're more than one minute late, we're penalized. What can be done?
I get questions about liability of tribal casinos a lot because my office is just a few miles from a major one here in Florida. In general, Native American reservations are considered to be on sovereign soil, and therefore the tribes are usually not subject to U.S. employment laws. The tribes have sovereign immunity, the same as if they were a foreign country. Tribes can waive sovereign immunity in contracts, so if you have an employment contract it's possible, but not very likely, that you have a waiver of immunity in your contract.

To find out what laws might protect you if you work for a Native American tribe, read my article Do I Have Workplace Rights If I Work In An Indian Casino?

Friday, July 18, 2014

What Does It Mean Now That My Employer Has A Religion?

Or, Crazy Stuff The Supreme Court Did While I Was On Vacation

So there I am in California, land of actual employee rights, when I see the Supremes ruled on a case involving Hobby Lobby.  As I'm reading the opinion, I'm thinking maybe I just have vacation brain. I can't be reading this right. Then I look to see what Justice Ginsberg said in the dissent and I realized I wasn't misreading the opinion. Here's what she said about it:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.

Hm. What does this mean? A corporation can have a religion now? Yep. Although this decision was about closely held corporations (think family-owned), the Court didn't limit the decision in any way. They left open the possibility that larger corporations can now find religion.

This case was about the Religious Freedom Restoration Act, which included corporations in the definition of a "person," so maybe it was just a congressional screw-up. The Court said that a company with owners that had a sincerely-held religious belief that life begins at conception didn't have to provide health insurance coverage under the Affordable Care Act.

Although Justice Alito said in the majority opinion that the government has a compelling interest in providing equal opportunity in the workforce regarding race, he failed to mention, for instance, gender. He certainly didn't mention any compelling interest in preventing sexual orientation discrimination, which may be what this is really about.

The Hobby Lobby case didn't address the gender discrimination involved in denying coverage for contraception, but you can bet there will be a case filed against them soon for sex discrimination on this very issue. And the female employees should probably win it.

I think there will be quite a few unintended consequences of this decision. Here are some things we don't know:

  • Can a Christian Science-owned corporation refuse to provide coverage altogether?
  • Can a Rastafarian-owned corporation refuse to provide coverage for employees who aren't using medical marijuana?
  • Can an ethical vegan-owned corporation refuse to provide coverage for carnivores?
  • Can a corporation refuse to hire women because of a sincere belief that women belong in the home?
  • Can a corporation refuse to promote women because of a sincere belief that women should be subordinate to men?
  • If a corporation holds the religious beliefs of its owners, does that make it easier to pierce the corporate veil and prove the company and owners are one and the same?
  • Did the Supreme Court just approve the use of Sharia law by Muslim-owned corporations?
  • How long will it be before corporation-persons demand the right to vote?

I guess we'll soon see all of these issues litigated in a courthouse free-for-all that will be terrible for everyone but the lawyers.

Tuesday, July 15, 2014

How Do I Prove Sexual Harassment?

An AOL Jobs reader asked:

I was just wondering if I will get in trouble for bringing light to my situation at work, I'm being sexually harassed by my supervisor. It started back in July and I've made multiple complaints, nothing has been done except the incidents have been "documentedIt's very uncomfortable to work with him because he retaliates by making me work late so I have to stay there with him. I even called corporate and they told me I need to continue to work with him and let them know how it goes. It's not fair and I thought harassment would be taken more seriously. I work for a big company so I'm scared. I'm tired of everyone else not speaking up though so I don't care anymore. The management and human resources are corrupted, they don't follow their own policies. I've already contacted news stations trying to get them to publish my story because no one's on my side. A lawyer said it would be too hard to prove this in court. Something must be done. Tomorrow I will be contacting the EEOC. Could you please give some advice on this situation?
No doubt, proving sexual harassment can be difficult, because it is usually your word against the harasser's. Still, you shouldn't just continue to be sexually harassed without taking action. 

To read about eight steps you can take if you're the victim of sexual harassment at work, read my article How Do I Prove Sexual Harassment?

Friday, July 11, 2014

Can My Employer Ban Me From Speaking Spanish To Co-Workers?

An AOL Jobs reader asked:
Good afternoon, I have a question. I was just told by my supervisor that I cannot speak Spanish to my coworkers in our department. She states that some other non-Spanish speaking workers claim it makes them uncomfortable. I am asked to assist Spanish-speaking customers with no additional pay, but this is not a concern. I will certainly comply with this request, but I am not sure if it is fair or even legal. I hope you can clarify this for me. Thank you for your assistance.
I'm always surprised how many employers try to impose English-only policies or ban speaking a particular language when there are so few circumstances where such a policy would be legal. Most English-only policies at work violate the laws against national origin discrimination.

Take a look at my article Can My Employer Ban Me From Speaking Spanish To Co-Workers? to find out more about English-only policies in the workplace.

Tuesday, July 8, 2014

What Every Teen Needs To Know About Getting Paid At Work

I wrote about general workplace rights teens and young adults need to know. And before that I wrote about workplace sexual harassment. But there's even more you probably didn't learn about work when you were in school. I bet your high school and college didn't tell you about what you're entitled to be paid under the law, what hours you're allowed to work, how to figure out if your internship should be paid, and allowable work breaks, did they?

If you're a teen or young adult starting or looking for a summer job or internship, getting paid (or getting a meaningful learning experience) is one of the most important things. Otherwise, you could be at the beach or ziplining. If you're a parent, friend, guardian or relative of someone entering the workforce for the first time, make sure they know their rights on getting paid. Otherwise, they'll be hitting you up for funds, right? No worries. 

Read my article What Every Teen Needs To Know About Getting Paid At Work to find out what you need to know about teen and young adult wages, hours, unpaid internships and breaks.

Tuesday, July 1, 2014

9 Things Every Teen Should Know About Workplace Rights

If you're in high school or college, odds are you're looking for a summer job or internship. Maybe you're even working during the school year. Of course, your school gave you detailed preparation on what your legal rights are when you work. Right? Ha. Not a chance. Schools do roughly zip to prepare teens for the real world workplace. You have to figure this stuff out on your own.

Well, I'm here to help. I wrote last week about sexual harassment, but there's more you need to know. If you're new to the workplace or getting ready to apply for an internship, this is the article for you.

If you are the parent, relative, guardian or friend of a teen who is about to enter the workforce, do them a favor and print, tweet, email (do teens email?), text, Instagram or Pinterest this to them. (You can probably forget about Facebooking it to them since they all fled when their parents got on Facebook.)

Read my article 
9 Things Every Teen Should Know About Workplace Rights to find out what your high school or college probably didn't teach you about workplace rights.

Friday, June 27, 2014

Are 9 Sexual Harassment Cases And A Naked Dancing Video Cause For Firing? Maybe Not

When AOL Jobs asked me to write a column commenting about Dov Charney's firing from American Apparel, my first reaction was to roll my eyes. Of course it was "for cause," I thought. The founder of the iconic clothing company has been hit with nine sexual harassment charges (that we know of). And then there's the #NSFW naked dancing video showing him dancing with full flappage in front of female employees. It seemed obvious to me that his firing would be considered to be "for cause" under his contract. 
But was it? Maybe not.  
Read my latest column, Are 9 Sexual Harassment Cases And A Naked Dancing Video Cause For Firing? Maybe Not to find out why.

Tuesday, June 24, 2014

What Every Teen (And Parent) Needs To Know About Sexual Harassment At Work

Thinking about a summer job or internship? I bet you didn't know that, if you are an intern, there is no federal law against sexual harassment of interns. Some states have recently passed laws to fix this horrible omission. If you live in New York, Oregon or DC, you're protected. Other places, not so much.

Big problem, right? That makes stepping out into the work world doubly scary. Your high school and college probably didn't prepare or warn you about the possibility of sexual harassment at work and tell you what to do about it.

If you're a teen or young adult new to the workplace, this article tells you what you need to know about sexual harassment at work. If you're a parent, guardian, relative or friend of a teen, make sure they know this vital information before you send them out there into the great wide world.

Read my article What Every Teen (And Parent) Needs To Know About Sexual Harassment At Work to find out what you need to know about sexual harassment. And if you aren't concerned, take a look at my article about the poster boy of sexual harassment of teens at work.

Friday, June 20, 2014

Florida Legalizes Medical "Marijuana" But You Can Still Be Fired For It

Florida's Governor signed a bill legalizing a form of medical "marijuana" called Charlotte's Web this week. The law will go into effect next year. I'm underwhelmed. While it's a bit of a victory for patients covered under this new law (cancer or a physical medical condition that chronically produces symptoms of seizures or severe and persistent muscle spasms), as is typical with Florida laws there is zero protection for employees.

What this means is that, even though Charlotte's Web is "low THC" and thus non-euphoric, so you won't be impaired when using it, you'll still likely fail any drug test if your employer has mandatory drug testing. Heck, here in the Sunshine State your employer can fire you because they didn't like your shirt that day. They can certainly fire you for using legalized marijuana even if it is for a severe disability and recommended by your doctor.

Arizona, Delaware and Minnesota have all passed specific laws stating that legal users of medical marijuana can't be fired for positive drug tests unless they're actually impaired on employer premises or during working hours. It's a sad day when Arizona has better employee protections than, well, anyone. Yet Florida remains one of the worst states for employees in the nation. We're number one! Yay!

There's also a ballot initiative in November that will let voters choose a much broader medical marijuana law that opens up use to people with even more medical conditions and allows doctors to recommend regular marijuana instead of the wimpy cousin that's the subject of this new law. You'd think the ballot initiative authors would have thought to put something in protecting employees, but no. You can read the full text here, and shockingly absent are any employee protections.

Connecticut, Arizona, Delaware, Illinois, Maine, Minnesota and Rhode Island all prohibit workplace discrimination regarding medical marijuana users. I think it's completely irresponsible to pass laws allowing people to use medical marijuana but not protecting their jobs. While Florida's ballot initiative is a start on the road to treating people with disabilities more humanely, we also need to protect their jobs.

Friday, June 13, 2014

The Criminalization Of Employment Law

A new indictment in a trade secret case, where a former employee opened his own business, made me think about something that's been bothering me for awhile, namely, the criminalization of employment law. I did a piece about this a couple years ago called Your Ex-Boss Wants You In Jail. It's gotten worse. Not only are we sending employees to jail for what used to be civil offenses, but the criminalization is completely one-sided. Employees blink wrong, go to jail. Employers can't get tossed in the hoosegow no matter how bad they misbehave.

Here's what The Dallas Morning News says about the case:
The indictment states that Tezock was an employee of Voltaix for about 16 months until September 30, 2005, when he was scheduled to be let go from the company.

During the last month of his employment he was allowed to complete a project from home, working with proprietary company files on his personal computer. It was during this time that the district attorney’s office alleges Tezock made copies of a secret recipe for germane, a valuable chemical used in semiconductors and solar technology.
Speaking through an attorney, Tezock denied the charge that he had stolen plans to produce germane.

A letter released by Tezock’s legal counsel said that he had applied and was granted a patent for his method of germane production in 2009. According to Tezock, Voltaix’s response at that time was to try and re-hire him.

Daniel Therings, a former attorney for Metaloids, said that thereafter Voltaix brought a civil action against the company and Tezock in 2010. Court documents filed in Texas’ fifth district court of appeals show the company asked the court to stop Metoloids from producing germane.

While Therings said the case is still caught up in appeals, he said the court sided with Metaloids. A news brief on the company’s website said Voltaix was ordered to pay the cost of further litigation.
He got a patent for it, but it's their trade secret? Let's assume that this isn't as ridiculous as it sounds. So an employee who uses alleged trade secrets to open his own business is a criminal, despite antitrust laws saying competition is one of the biggest tenets of capitalism. Indeed you can look at all the arguments againstnoncompetes in Massachusetts to see why letting employees compete with former employers is a good thing. Okay, taking trade secrets is bad, if it really happened. So sue the employee for any damages. But a crime?

One employee was sentenced to four years in prison for trade secret violations. Another employee is sentenced to 97 months. There are trade secret convictions and more trade secret convictions.

Then there employees getting convicted for exceeding their authority to access information on computers at work. One guy was sentenced to 41 months under the Computer Fraud and Abuse Act and his sentence was finally reversed on appeal. CFAA prosecutions have been all the rage among employers seeking to toss employees in jail. Yet if you look at the civil cases on CFAA, you can see just how broad this law is and how much employees are at risk if they click the wrong link at work.

 Employers Skate

Then look at the employer side. No criminalization there. Despite attempts to criminalize wage theft, all we get are local ordinances and attempts by Republicans to make even the wage theft ordinances illegal. Wage theft is rampant, and it costs us all money. Several Florida counties have passed ordinances to beef up efforts to go after employers who steal employee wages. They should be throwing them in jail, but no, can’t do that. Heck, Broward County couldn't even use the term "wage theft" in its ordinance because employer groups threw a hissy fit.

Look at employers who violate antitrust laws, which have criminal penalties, by the way, by forcing low level employees who can’t affordto fight to sign noncompete agreements for the sole purpose of preventing competition. Are they being prosecuted for making employees virtual indentured servants? No way. What about eBay, Apple, Google and othersconspiring to violate antitrust laws with no-poach hiring agreements? Criminal prosecutions? Nope. Slap on the wrist.

Egypt just made sexual harassment a crime. We can’t even get federal laws passed making sexual harassment of unpaid interns illegal. That’s right. Our kids have no legal protection against sexual harassment anywhere but Oregon and NY.

Groping teenagers and young women? Not even a civil offense. Stealing employee wages? Not a crime. But starting a competing business against your former employer? That’s a jailing offense.

Seizing Employee Property?

Now employers want to pass a law allowing courts to seize the property of former employees who dare to compete. The Fourth Amendment be damned. How can you fight a case if you don't have the proof? You can't, and that's exactly what employers want. They can shut down employees who dare to compete without lifting a finger. Where's the outrage? Why isn't hell being raised at the prospect of this ridiculous new law?

This makes me mad as hell. Does it make you mad too? Then start raising hell with your legislators. Tell them to stop the one-sided criminalization of employment law. And tell them to say no to seizure of employee property for alleged trade secret violations.

Let's not give up employee rights so easily.