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.

Monday, December 21, 2015

Call Me Karnak: How I Did On My Predictions For 2015

It's time to see how I did on my predictions for 2015. I have to say, I did pretty well. See for yourself. Here's what I predicted, and what really happened:

1. Intern sexual harassment: I predicted that Miami-Dade County would follow Broward County's lead and pass an ordinance banning sexual harassment of interns. Boy, was I wrong. Broward's proposed ordinance stalled indefinitely. Miami-Dade did nothing to protect interns. I predicted a bill would be introduced in the Florida legislature, but that Republicans in charge of both houses and the governorship would block it. I was right. On the national front, I correctly predicted we'd see a move afoot in other states to pass a law similar to the ones passed in California, New York, Oregon and Illinois. This year Connecticut and New Jersey passed legal protection for interns and a bill was introduced in Michigan.

2. Micro-unions: I predicted that micro-unions would start popping up more in 2015, but it seems that there wasn't exactly a rush to unionize small groups of employees of bigger employers. Still, there were a few micro-unions that were voted in in 2015. A small group of Volkswagen skilled trade employees were approved to vote on unionizing. Pharmacists at a Target in Brooklyn voted in a micro-union, giving unions a foothold for the first time in the mega-retailer. It wasn't the woe-is-me rush that anti-union folks predicted, but it's a start.

3. Minimum wage: I predicted that 2015 wouldn't be as big a year for increases because it isn't an election year, but that we'd see some more states and local governments raise the minimum wage to over $10/hour. Rhode Island passed an increase to $9.60 an hour, so very close but no cigar. Cities did better by their workers in 2015. Los Angeles and Sacramento raised their minimum wage to $10.50. Mountain View, Santa Clara and Palo Alto, CA and Santa Fe, NM went up to $11.00. Mountain View's rate will gradually reach $15.00 in 2018. Portland, ME went to $10.10.

4. Obama as employee advocate: I predicted that President Obama would continue to use executive orders to push for employee rights, and he certainly did that. I predicted that his push to pass a paid sick leave law would fail and that members of Congress with elephantitis would do everything they could to make sure workers remain oppressed and that certainly happened. For more about what President Obama did with his pen, check out my blog post on it here.

5. Gay marriage: I predicted that we'd continue to see marriage equality expand. Yep. Called that one.

6. Marijuana: I predicted that legalized marijuana and medical marijuana would continue to expand, but not one new state legalized it in 2015. However, Delaware finally restarted its medical marijuana program this year and opened its first dispensary. Illinois also opened up its first dispensary. Some states added certain medical conditions to their approved list of conditions for which marijuana could be prescribed. So there was movement, but not the surge I expected. Several states are trying again next year. I predicted that employees who use marijuana for medical purposes would continue to get fired due to lack of laws protecting them even when they have a prescription, and that definitely happened.

7. Republican roll-back: I predicted that Republicans would try to roll back worker rights. I predicted they'd attack the Fair Labor Standards Act. They did, trying to pass legislation to allow comp time instead of overtime pay. I said they'd attack the NLRB. They did, as they tried to reverse NLRB's ruling on franchises as joint employers and on simplifying union elections. I said they'd try to repeal Obamacare. They did. I said President Obama would veto these efforts. He did.

8. Noncompetes come into question: I predicted we'd start to see some antitrust investigations of the more extreme and abusive noncompete agreements. Michigan legislators took a swing at noncompetes, as did Maryland and Rhode Island legislators, but didn't manage to ban them yet. I said there will be another effort in Massachusetts to ban them, but it will likely fail. So far, there's no ban there, but legislation is still pending. I predicted no states would ban them yet, but that eyes would begin to open on how abusive they can be. I was actually wrong, since Hawaii banned noncompete agreements for many tech workers this year. Senator Franken has introduced legislation to ban noncompetes against low wage workers. A $415 million settlement in a no-poach agreement case should also shake some employers up to the implications of illegally barring employees from working for competitors.

9. Gridlock: I predicted that zero would actually happen on the national level. ENDA, Civil Rights Tax Fairness Act, FAMILY Act, and Arbitration Fairness Act. Nothing happened.

10. Ban the box: I predicted more states and local governments would ban employers from asking about arrests and convictions on applications, and would limit the use of convictions found in background checks to those that are actually relevant to the job sought. Georgia, Hawaii, New York, Ohio, Oregon, Vermont and Virginia brought the total to 19 states and over 100 municipalities that have passed some form of ban-the-box legislation, policy or executive order. President Obama has also banned the box for federal employers.

Overall, I think I did pretty well in predicting 2015. Next, I'll share my predictions for 2016.

Monday, December 14, 2015

How To Go To Your Office Holiday Party And Still Stay Employed

It's that most horrid time of the year: time for office holiday parties. Since some of you are likely going to have to contact someone like me after you get fired for what happened at your office party, I would like to remind you about how to stay employed despite the office festivities.

Here is my warning about the top behaviors that will get you fired at your office holiday party:

1. Drinking: First of all, if you are an alcoholic and can't be sure you won't drink if you attend, then don't go. If your boss is insistent, you can ask for a reasonable accommodation under the Americans With Disabilities Act to be excused from attendance. If you do drink, limit yourself to two drinks tops, then switch to soda. I'm serious here. The number one way to get fired is to drink too much.

2. Dancing: Many people are fired or disciplined for "inappropriate" dancing. What's inappropriate? It's in the eye of the beholder, and the boss, customers, vendors and your coworkers are the beholders. When in doubt, sit it out. Any moves that imitate sexual conduct (grinding, gyrating, rubbing) are dangerous if colleagues are present. If you're dancing with a colleague, then be very careful. You don't need a sexual harassment complaint in the new year.

3. Driving: A DUI can get you fired. If you don't believe me, check out my article 9 Ways A DUI Can Destroy Your Career. If a colleague or friend tells you to hand over your keys, do it. There's always Uber or a taxi. It's way cheaper than defending against a DUI/DWI charge and losing your job.

4. Mistletoe: Kiss your spouse or date under the mistletoe, but not a colleague or, god forbid, your boss. Seriously.

5. Romance: After a few drinks, colleagues start to look pretty attractive. Office romances are dangerous. If you have a one-night-stand or party makeout session with a coworker (or worse, the boss), expect repercussions at work. Sure, many couples meet at work. My parents did. But tread carefully. No means no. If you break up, stay away and don't retaliate. Persistence does not pay in an office relationship. You can get fired for sexual harassment if you pester a coworker for a date. Don't accept the invitation to the colleague's room. If there's a real romance, take it slow and be sure before you take it between the sheets.

6. Pressure: Don't pressure anyone to attend an office party. They may have religious objections to attending. Maybe their disability prevents them from coming, or they have a spouse with a disability. You don't want to get charged with religious or disability harassment.

7. Games: Some offices have party games. The temptation is to be lewd or bawdy. Avoid making sexual innuendos, telling off-color jokes, or making other comments that may be deemed inappropriate or offensive.

8. Singing: If the office loves karaoke, avoid songs with curse words, inappropriate lyrics, or offensive undertones. If you're singing with a colleague, avoid anything overtly sexual. Also avoid any sexual gestures while singing.

If you think I'm the Grinch, think again. It's your boss and HR that are the holiday Grinches. I'm just trying to keep you employed. Ho ho freaking ho.

Monday, November 23, 2015

Florida Democrats Take Another Swing At Pro-Employee Legislation (That Won't Pass)

Another legislative session coming up, some more pro-employee legislation that will not pass. But here’s what some Florida Democrats (okay, I didn’t check them all, but c’mon, what are the odds that any of the co-sponsors of any pro-employee laws are Republicans?) are trying to pass in 2016 to help Florida employees:

$15 minimum wage: SB 6 and HB 109 would raise Florida’s minimum wage to $15/hour

ERA: SCR 74 and HCR 8001 would ratify the Equal Rights Amendment. Better late than never.

Sexual Orientation: SB 120 and HB 45would add sexual orientation and gender identity to prohibited categories of discrimination in the workplace.

Social Media Privacy: SB 186 would prohibit employers from demanding your social media passwords.

Unemployment and Domestic Violence: SB 188 protects employees who leave or lose jobs due to domestic violence from being disqualified for unemployment benefits.

Paid Sick Leave: SB 294 and HB 205 would require state and local governments with at least 9 employees to provide paid sick leave to employees. Why only government employers? I'm really not sure that's what the sponsors meant to do, but that's what it says employers are.

Paid Family Leave: SB 384 and HB 603 would require employers to provide paid leave similar to FMLA for birth or adoption of a child and care in the first year, but it applies to employees who work at least 20 hours a week, applies to employers with at least 15 employees, and would permit up to 6 weeks of protected leave. Creates a rebuttable presumption that any demotion or discharge taken within 90 days against an employee who takes leave is a violation.

Ban the Box: SB 448 and HB 353 would prohibit employers from asking about criminal history in initial employment applications.

If you support any of these bills, start calling and writing your legislators now. Especially the Republicans. If any of these proposed laws get overwhelming support, they may just have a chance. My prediction: DOA.

Monday, November 16, 2015

Those Anti-Muslim Rants Are Going To Get You Sued

In light of the attacks in Paris and the end of Jihadi John, I'm guessing there will be lots of workplace cooler talk about Muslims and Middle Easterners in the news. Inevitably, someone will go on a rant about Muslims. That person will get you sued unless you shut them down speedy quick.

A recent example is a lawsuit filed after a Muslim employee was taunted by coworkers with cries of, "Allahu Akbar" when he was on the phone and setting his password as, "BinLaden1." The coworkers claim it was all in good fun. Not surprisingly, the Muslim employee was not amused.

So yes, it is sometimes tempting in anger over a big news story to vent frustrations on someone who looks or sounds different. I've met people from the West Indies, India, and even South America who looked to coworkers or customers slightly Middle Eastern and who were subjected to horrid treatment: name calling, offensive cartoons, moving them to the back of the workplace so customers won't see them, pranks. Calling a dark-skinned person a terrorist, asking them if they are going to cut off your head, or blaming them for ISIS is stupid. It's also illegal. So is refusing to hire an applicant who wears a hijab, bowing to customer preferences not to deal with a Muslim employee, and firing an employee when you find out that they don't hold your religious beliefs.

To HR people, I would urge you to shut down any such activities immediately. You may not be popular, but you might just save the company from a lawsuit. You might remind offenders that all Muslims are not any more responsible for the attacks in Paris than all Americans are responsible for the actions of Timothy McVeigh (the Oklahoma City bomber).

To Muslims and Middle Easterners (and people who "look" Muslim) going to work this week, don't despair. Take good notes of any incidents, with dates, locations, and witnesses. Print out any offensive emails or written materials. Then report it, in writing, to HR. Call it, "Formal Complaint Of Religious/National Origin Harassment." Lay out how you have been treated differently than non-Middle Eastern/non-Muslim employees (or Anglos, etc.) and any harassment you encountered due to your national origin and/or religion.

If they won't shut it down, contact EEOC or an employment lawyer in your state. You have the right to work in a place free of religious and national origin-based harassment.

Monday, November 2, 2015

Beware The Trojan Horse Of "Rewards" With Noncompetes

Your boss and HR deliver the great news: the company loves and appreciates you. It wants to reward you. Maybe they're "giving" you a retention bonus, stock, options, or some other reward that sounds like a heap of money for free. But beware. It may be a Trojan Horse. If it sounds too good to be true, it could be really, really bad.

Lately, I'm seeing more and more so-called "rewards" coupled with noncompete agreements. Employees that were free to leave and work for a competitor are being lured into signing an agreement that they won't work for a competitor for a year or two after they leave, or won't solicit or work for clients for a year or two. Some say you can't contact clients at all, which can make Thanksgiving really awkward if your son is one of your customers (don't laugh - an employer actually tried this with someone).

Here are some things to watch out for when you're handed a reward package that requires you to sign a lengthy contract:

What is cause for termination?: Sometimes the company will tell you that this contract means you can only be fired for cause. That they will have to pay you out for months or a year or more if they don't have cause. But does that really protect you? Better look at how it defines "cause."

If you can be fired for "poor performance," who decides what is poor? Do you get written notice and an opportunity to improve? Is it subjective or objective? If it's subjective, you aren't protected much at all.

If "cause" is "violation of company policies," that sounds reasonable, doesn't it? But when is the last time you read those policies? I bet there is a policy saying you can't use the company email for personal use? Do you email your husband to say you're running late or to remind him to pick up the kids? You just broke policy. You can be fired without notice and get zippo.

If you signed a noncompete agreement, you may be bound by it even if you're fired without notice or severance. It's better if you can negotiate "cause" that is real, such as if you're fired for embezzlement, fraud, failing to perform specific duties, conviction of a crime involving dishonesty or other measurable offenses.

What does it say you can't do after you leave?: If it says you can't contact vendors after you leave, then you may not be allowed to shop at, say, Office Depot if they buy their paper from the office superstore. Can you buy a copier or printer when you leave? Maybe not if they do business with Canon or Ricoh. Can you fly on a plane? If they do lots of corporate travel you may have to take a bus for a year or two. Sure, this all sounds ridiculous. But I'll tell you truly that there is no argument too ridiculous that your employer couldn't find some management-side lawyer to make the argument if they wanted to give you a hard time. Try to negotiate reasonable restrictions before you sign. If there are key customers they don't want you to call on, try to have them listed. If you worked in the industry for 20 years before you came to the company, make sure you aren't signing over your right to call on your contacts.

Can you afford not to work in your industry for a year or two?: Let's say it says you can't work for a competitor or a customer for a year or two. That means you're sitting out of the industry with a large gap in your resume. Even if they offer to pay you to sit out that long, unless you're getting ready to retire that gap can hurt you way longer than the noncompete period. Employers don't like to hire the unemployed. The stats on hiring the long-term unemployed are terrible. So while sitting on a beach for a year or two sounds tempting, are you sure you will be employable when you're ready to go back to work? A better clause to negotiate is one saying you won't be bound if you're fired without cause, and negotiate a reasonable definition of cause, and negotiate for a reasonable restriction like 6 months that will allow those contracts you were working on to go stale but not your skills.

Beware the vesting: If it says you'll get $200,000 in stock, but it vests 10% a year, then you could sign, be fired a week later, they could take back the reward, and you may still be bound by the noncompete in some states.

Sometimes, it's best to say no to a reward even if you think the company is well-intentioned. If, when you point out these problems, they won't work to address your concerns, but claim they would never enforce such a provision, maybe that's true and maybe that isn't. Assume it will be enforced before you sign and assume that it can be interpreted in the most ridiculous way possible. The time to negotiate a reward agreement is before you sign. If you say no to it, sometimes you can negotiate for something you'd rather have, like more vacation time, real stock that isn't on a vesting schedule, or a truly non-at-will contract.

If they won't negotiate and get hostile when you refuse to sign, maybe their intentions aren't so good. You could be headed for a reorganization or layoff. That reward may be a Trojan Horse. Beware bosses bearing gifts.

Monday, October 19, 2015

How Discrimination Can Kill You

Pretty much every day I fight employers who don't take discrimination seriously. HR people and management tend to think people who complain about discrimination are poor performing whiners. But discrimination is real, and it really happens in the workplace.

Not only can discrimination cost you money in lost wages and benefits, but now there are some studies saying discrimination can damage your health or even kill you. So, HR and management folks, please take discrimination complaints seriously. If you don't, you might be helping to kill one of your employees. And if you're a victim of discrimination, take action to report it.

Here are just some of the studies showing discrimination can kill you:

Weight discrimination can kill you:  "Weight discrimination was associated with an increase in mortality risk of nearly 60%  . . . This increased risk was not accounted for by common physical and psychological risk factors. . . . In addition to its association with poor health outcomes, weight discrimination may shorten life expectancy." This is pretty strong evidence that weight shaming kills. "These findings suggest the possibility that the stigma associated with being overweight is more harmful than actually being overweight," say the authors of the study.

Age discrimination can kill you: "Perceived discrimination was associated with increased mortality risk in a general population of older adults. The results suggest that subjective experience of interpersonal mistreatment is toxic in old age. This study adds to a growing literature documenting discrimination as an important social determinant of health."

Discrimination can cause cancer: Perceived discrimination may contribute to somatic disease. . . . These findings suggest that perceived experiences of racism are associated with increased incidence of breast cancer among US Black women, particularly younger women.

Discrimination can cause insomnia, smoking and poor eating habits: "After adjustment for age and SES, everyday discrimination was associated with more smoking and a greater percentage of dietary fat in men and women. . . . Everyday and lifetime discrimination were associated with fewer hours of sleep in men and women . . . . Burden of discrimination was associated with more smoking and fewer hours of sleep in women only."

Racism can cause illness over a lifetime: Racism in childhood can cause lower cortisol levels, resulting in insomnia, depression, cardiovascular disease and diabetes.

Bottom line: If you are the victim of discrimination, it may be killing you. Don't just sit there and do nothing. Report it to HR under your company's discrimination policy. Do it in writing because if you don't then they may deny you reported it. Make sure you say what type of discrimination it is: race, age, sex, religion, national origin, disability, or some other protected status. Don't just say you're being bullied or harassed, because then you aren't legally protected against retaliation.

If the company doesn't take you seriously, then contact an employment lawyer or file a charge of discrimination with EEOC. Don't let a bigot shorten your life.

Monday, October 12, 2015

It's Time To Revamp Florida's Unemployment System

In an excellent piece by Marcia Heroux-Pounds of the Sun-Sentinel, the severe deficiencies of Florida's unemployment system are exposed. Bottom line is that our lovely governor and his friends in the legislature have made it almost impossible for people who have lost their jobs to collect unemployment. If they do collect, they are put through hell, and then the government tries to screw them out of their money by demanding it back.

As a taxpayer, I have to ask: why are we allowing our state government to torture people who have lost their jobs? We have a ridiculously low maximum weekly rate of $275, which is barely grocery money for many people with kids. We max out at 14 weeks, when most states give benefits for 26 weeks. We make these folks who have lost their jobs, which is as traumatic as losing a loved one, jump through hoop after hoop for this piddly amount of money. And we're finding more and more ways to justify excluding them from the system by blaming them for their unemployment.

This affects Florida taxpayers directly in the wallet. Unemployment is essentially an insurance policy that employers pay for each employee as part of their payroll. That means every single Florida employee should be protected. By denying these benefits, we end up forcing the unemployed onto food stamps, welfare, and other taxpayer-supported benefits.

I think it's time to turn the tables. We have at-will employment in Florida, like 48 other states (Montana is the only state without at-will employment). That means employers can fire employees because they are in a bad mood, didn't like the employee's shirt, or for no reason at all. While many states have exceptions to the at-will doctrine, like violations of public policy, implied contract, and violating the implied covenant of good faith and fair dealing in an employment relationship, Florida has none of these.

So we, as taxpayers, are footing the bill for employers who make arbitrary employment decisions. Why not make employers who fire employees without just cause pay for their arbitrariness? Why not lift the maximum rate employers can be charged to these arbitrary employers? Why skew the system to punish employees but not employers?

Here are some things we could demand, as voters, to change the system:

Raise the rates: If employers are found to have abused the system by firing an employee without cause, raise their unemployment rate to cover 100% of the unemployment compensation payments being made for that employee, minus any payments they already made into the system for unemployment compensation. Employees who abuse the system have to repay. Why not employers?

Ban scofflaws from hiring: Employees who owe repayments to unemployment are barred from applying again until they have repaid in full. If employers fail to make the payments for their arbitrary firings, ban them from hiring new employees until they are caught up in payments. Why should they be allowed to continue their arbitrary practices without paying the piper?

Mandatory training: Employees who apply for unemployment have to jump through hoop after hoop to get unemployment. Employers who are found to have fired without just cause should have to take mandatory training, which could be done online, on employee management, progressive discipline and what constitutes just cause for firing.

I don't know about you, but I'm sick of my tax dollars supporting employers who have huge turnover due to at-will employment. It's time to make employers pay if they don't treat employees with a reasonable level of fairness.

Monday, October 5, 2015

If You Work For A Federal Contractor, You Have More Rights Than You Thought You Did. Thanks, Obama!

President Obama has been firing up his mighty pen and issuing Executive Orders left and right. Well, left anyhow. Some of those orders may benefit you. If you work for a company that does business with or gets money from the Federal government, you probably have more rights than you thought you did.

Here are some of the lovely, pro-employee executive orders that you should thank President Obama for (and vote well in the next election to preserve, since every Republican candidate vows to reverse every one of these):

Paid sick leave: You will be entitled to one hour of paid sick leave for every 30 hours worked, starting in 2017. Since this is just a few days before the President leaves office, if you vote wrong this order will not have much chance to actually go into effect.

LGBT discrimination: Gender identity discrimination by contractors is now illegal, along with sexual orientation discrimination.

$10.10 minimum wage: Starting January 1, 2016, contractors must pay $10.10/hour as a minimum wage, and $5.85/hour to tipped employees.

Right to work for a successor company: For service contracts of $150,000 and up, if a new company displaces an existing company, the employees of the predecessor must be offered first shot at jobs under the new contract. Service employees have to be told of their right of first refusal by either posting a notice or giving individual notice to the predecessor contractor’s employees. The predecessor contractor has to provide its successor an employee list by 30 days before the end of the contract.

Blacklisting for employment/labor law violations: Anyone applying or bidding for a federal contract of $500,000 or more must disclose any employment or labor law violation. They must disclose any administrative merit determination, arbitral award or decision, or civil judgment rendered against them within the preceding three-year period for a violation of any of these laws:

(A) the Fair Labor Standards Act;
(B) the Occupational Safety and Health Act of 1970;
(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 1973;
(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 1967;
(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.
Post-award and during the performance of a contract, contractors have to update their violation information every six months and, for some contracts, obtain the same violation information from their covered subcontractors.

This means that federal contractors need to be very afraid of things like a "cause" finding from EEOC. Punishment for repeat offenders can be up to cancellation or denial of a contract.

No mandatory arbitration: Yes, I know I linked to the same executive order as blacklisting, above. That's because the same order bans agreements that require mandatory arbitration for discrimination and sexual harassment claims. Specifically, "for all contracts where the estimated value of the supplies acquired and services required exceeds $1 million, provisions in solicitations and clauses in contracts shall provide that contractors agree that the decision to arbitrate claims arising under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after such disputes arise." This also applies to subcontractors providing services or supplies over $1 million.

Overall, these orders mean that President Obama has taken serious action to protect as many employees as he can with his pen, since Congress won't do diddly squat to protect employees in its current configuration. This is solid proof that your vote matters.

Monday, September 28, 2015

Why Your Employer May Not Be Too Small For A Discrimination Claim

Many employees are frustrated to hear that most discrimination and other employment laws don't cover small employers. For Title VII, which covers race, sex, national origin, sexual orientation (at least EEOC thinks it does), color, pregnancy, and religion, and the Americans With Disabilities Act, employers must have at least 15 employees to be covered. For the Age Discrimination in Employment Act, they must have at least 20. For COBRA, it's also 20. Family and Medical Leave Act requires 50 employees with in 75 miles of your work location.

State laws vary, but here in Florida our discrimination law, the Florida Civil Rights Act (which also covers age) covers employers with 15 employees, but some county ordinances like Miami-Dade and Broward cover employers with 5. In California it's five, Texas 15, New York 4. Here's a list of the discrimination laws by state.

But don't despair if your employer is too small to be covered under these laws. The National Labor Relations Board just issued a decision regarding a case against Browning-Ferris Industries that may help. Although NLRB doesn't rule on discrimination cases, this decision was about whether you can count the parent company if you work for a franchise. And this is important, because you may work for, say, a KFC, but your real employer is ABC Company, the tiny company that bought the franchise to your location. So your corporate employer may only have 10 employees. Part of the reason franchises are so popular is that it's a way to escape those pesky employment laws.

But maybe not for long. NLRB said that the parent company may well be liable for the misdeeds of the franchise owner. The test is simple (but complicated, as in all things legal), namely, does the parent company share or co-determine the terms or conditions of your employment? Here's how they explained it:
The Board’s joint-employer doctrine is best understood as always having incorporated the common-law concept of control—as the Supreme Court’s one decision involving the doctrine confirms. In the Greyhound case, as we have seen, the Court framed the issue presented as whether one statutory employer “possessed sufficient control over the work of the employees to qualify as a joint employer with” another statutory employer.64 Thus, the Board properly considers the existence, extent, and object of the putative joint employer’s control, in the context of examining the factors relevant to determining the existence of an employment relationship.
There's actually nothing new in this. That's always been the standard. What is new, and is causing much consternation in management-side circles, is that now NLRB will also consider whether the parent has the ability to control your terms and conditions of employment, even if it doesn't:

Under common-law principles, the right to control is probative of an employment relationship—whether or not that right is exercised. Sections 2(2) and 220(1) of the Restatement (Second) of Agency make this plain, in referring to a master as someone who “controls or has the right to control” another and to a servant as “subject to the [employer’s] control or right to control” (emphasis added). In setting forth the test for distinguishing between employees and independent contractors, Restatement (Second) Section 220(2), considers (among other factors) the “extent of control which, by the agreement, the master may exercise over the details of the work” (emphasis added). The Board’s joint-employer decisions requiring the exercise of control impermissibly ignore this principle.  
Nothing about the joint-employer context suggests that the principle should not apply in cases like this one. Indeed, the Supreme Court’s decision in Greyhound, supra, was entirely consistent with the Restatement (Second) when it described the issue as whether one firm “possessed [not exercised] sufficient control over the work of the employees to qualify as a joint employer.” Where a user employer reserves a contractual right (emphasis added) to set a specific term or condition of employment for a supplier employer’s workers, it retains the ultimate authority to ensure that the term in question is administered in accordance with its preferences. Even where it appears that the user, in practice, has ceded administration of a term to the supplier, the user can still compel the supplier to conform to its expectations. In such a case, a supplier’s apparently independent control over hiring, discipline, and work direction is actually exercised subject to the user’s control. If the supplier does not exercise its discretion in conformance with the user’s requirements, the user may at any time exercise its contractual right and intervene. Where a user has reserved authority, we assume that it has rationally chosen to do so, in its own interest. There is no unfairness, then, in holding that legal consequences may follow from this choice.
Causing additional woe-is-me complaints among management-side lawyers is that the control exercised doesn't need to be direct or immediate. Indirect control is enough.
Just as the common law does not require that control must be exercised in order to establish an employment relationship, neither does it require that control (when it is exercised) must be exercised directly and immediately, and not in a limited and routine manner (as the Board’s current joint-employer standard demands). Comment d (“Control or right to control”) to Section 220(1) of the Restatement (Second) observes that “the control or right to control needed to establish the relation of master and servant may be very attenuated.”  The common law, indeed, recognizes that control may be indirect. For example, the Restatement of Agency (Second) §220, comment l (“Control of the premises”) observes that [i]f the work is done upon the premises of the employer with his machinery by workmen who agree to obey general rules for the regulation of the conduct of employees, the inference is strong that such workmen are the servants of the owner... and illustrates this principle by citing the example of a coal mine owner employing miners who, in turn, supply their own helpers. Both the miners and their helpers are servants of the mine owner. As the illustration demonstrates, the common law’s “subservant” doctrine addresses situations in which one employer’s control is or may be exercised indirectly, where a second employer directly controls the employee.
There are very few franchise parent companies that don't control things like uniforms, time recordkeeping, the specifics of how the work is done (e.g., just how many fries are in a small order, and how long it should take to serve each customer), the equipment used, and even the training. I suspect few parent companies will not be found to be joint employers under this standard. While this case doesn't apply to discrimination and other employment laws outside the National Labor Relations Act, the reasoning is based on common law, which does apply to all these laws. And it will probably be persuasive to other agencies and possibly the courts.

Bottom line: If you work for a franchise, the parent company may be a joint employer, which means you can also count their employees when pursuing discrimination and other employment law claims, and you may have a deep pocket to reach to when suing for violations of these laws. And that's how it should be. The parent companies of franchises have taken a not-me hands off approach to the misdeeds of their franchises all too long. If they are making money off the backs of these employees, they should be responsible for making sure they are treated legally.

Monday, September 21, 2015

No, You Can't Use "Religious Discrimination" To Discriminate (But You Can Use It To Refuse To Serve Alcohol)

With all the brouhaha over the clerk who went to jail for refusing to issue marriage licenses to gay couples, plus being in the midst of the Jewish holidays, I thought now would be a good time to talk about religious discrimination and when employers must accommodate religious beliefs.

Here's what EEOC says about when an employer does not have to accommodate an employee's religious beliefs:
An employer can refuse to provide a reasonable accommodation if it would pose an undue hardship. Undue hardship may be shown if the accommodation would impose “more than de minimis cost” on the operation of the employer’s business.
To establish undue hardship, the employer must demonstrate that the accommodation would require more than de minimis cost. Factors to be considered are “the identifiable cost in relation to the size and operating costs of the employer, and the number of individuals who will in fact need a particular accommodation.” Generally, the payment of administrative costs necessary for an accommodation, such as costs associated with rearranging schedules and recording substitutions for payroll purposes or infrequent or temporary payment of premium wages (e.g., overtime rates) while a more permanent accommodation is sought, will not constitute more than de minimis cost, whereas the regular payment of premium wages or the hiring of additional employees to provide an accommodation will generally cause an undue hardship to the employer. “[T]he Commission will presume that the infrequent payment of premium wages for a substitute or the payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing reasonable accommodation.”

Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work. Whether the proposed accommodation conflicts with another law will also be considered.
So how does this play out when applied to some of the recent cases in the news? Here's how:

Elected official refusing to issue licenses: First of all, Title VII exempts elected officials from its application, so the elected clerk refusing to issue licenses to gay couples has no protection under this law. Even if she did, she is not only refusing to issue the licenses but wants to stop her entire staff from issuing them. If the state had to hire an entirely new set of employees to issue the licenses, that would obviously be more than a de minimis cost. Also, the requested accommodation, that she and her entire staff be allowed to refuse to issue the licenses, conflicts with the supreme law of the land, namely, the Constitution. Plus, the accommodation is a demand that the employer's customers be openly insulted and treated as second class citizens. It would clearly be an undue hardship to grant this accommodation. 

Flight attendant refusing to serve liquor: The same folks clamoring for the state to accommodate the recalcitrant clerk are unwilling to support accommodating the Muslim flight attendant who refuses to serve liquor. The flight attendant was being accommodated for two years without any problems by having her coworkers serve liquor when requested, but one coworker complained. Now she's suspended. Here's the problem with the employer now claiming a hardship: it accommodated her for two years. How can it claim that there's a sudden hardship? Time will tell, but I think she probably wins. It doesn't seem very hard to pass the drink order to the flight attendant at the other side of the cart and continue to serve soft drinks and coffee.

Employee who thinks a hand scan is the mark of the beast: As crazy as the belief sounds, if it is sincerely held then it needs to be accommodated, absent an undue hardship. When an employee objected to biometric hand scanning, claiming it was the "mark of the beast" in Revelations, he won his suit against the employer who refused to accommodate him, to the tune of $587K.

Bottom line is that you can't refuse to perform your entire job, but you can ask for accommodations regarding part of your job. You can't demand that your employer discriminate against others to accommodate your religion.

You can't be a bartender who refuses to serve liquor; can't get a job at a hamburger shop and refuse to serve meat; can't get a job at a daycare and the refuse to admit the children because you believe a woman should be at home instead of working; can't be a barber who refuses to shave men's beards. 

But if you need a religious holiday off or don't want to participate in a religious ceremony or activity at work, you're entitled to that.

Monday, September 14, 2015

11th Circuit Rules Courts Must Consider Hardship to Employee in Deciding on Florida Noncompete Injunction

Florida's noncompete statute is, no doubt, harsh on employees and extremely favorable to employers. However, the 11th Circuit Court of Appeals just made it a bit less harsh.

The Court ruled that, although Florida law bans the courts from considering hardship on the employee in determining whether or not to enforce a noncompete agreement, Courts must balance the hardships between employer and employee in determining whether injunction is an appropriate remedy. An injunction is, in the case of noncompete agreements, basically an order that you must stop working for your new employer, stop contacting customers of the former employer, or otherwise directing you to cut it out, whatever it thinks you're doing wrong.

The reason this is important is because most employees are facing an army of lawyers and a former employer with a substantial amount of dollars to use against them, and once the judge orders them out of a job they are fighting with no ability to pay a lawyer. It's a loss due to lack of money rather than due to lack of legal defenses.

This ruling means that a Court should balance the financial hardship on the employee in determining whether to yank their job away. The alternative remedy to the employer would be to prove money damages, and most employers can't prove that the former employee working for a competitor cost them a dime. That's because noncompetes are being used as weapons to suppress wages and prevent competition more often than for any legitimate interest.

I actually had an opposing counsel recently brag that they had gotten the same employee fired from three different jobs this way. Despicable.

Here's what the 11th Circuit said about why the courts must consider hardship, even under Florida's horrid noncompete statute:

MacLachlan appeals the lower court’s application of section 542.335(1)(g)1 to the preliminary injunction analysis, which precluded any consideration of the potential hardship to MacLachlan when the court balanced the harms under Rule 65. 
Section 542.335(1)(g) governs the enforceability of restrictive covenants, not the enforcement of an already enforceable restrictive covenant. See Fla. Stat. § 542.335(1)(g). This is evident from the framing, content, and position of the section in the overall structure of the statute. The section begins: “In determining the enforceability of a restrictive covenant, a court . . . .” It then goes on to list four considerations that a court “shall” or “shall not” contemplate when determining whether a restrictive covenant is enforceable. § 542.335(1)(g)1–4. Case: 15-10985 Date Filed: 08/27/2015 Page: 9 of 11 10 One of these—applied by the district court to the motion for preliminary injunction—is that the court “[s]hall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought.” § 542.335(1)(g)1. Section 542.335(1)(g)3 adds that the court “[s]hall consider all other pertinent legal and equitable defenses.” What is clear from the framing and content of sections 542.335(1)(g)1–4 is that the mandated considerations therein are directed towards the determination of whether a restrictive covenant is enforceable. Accordingly, these sections should not be applied when determining the appropriate remedy. 
[footnote 1 explains: The statute concludes with instructions for enforcement: first, it addresses public policy considerations, § 542.335 (1)(i), then, specific remedies, § 542.335(1)(j), and finally, attorney’s fees and costs, § 542.335(1)(k). These sections are clearly demarcated from the determination of whether a covenant is enforceable. See, e.g., § 542.335(1)(j) (“The violation of an enforceable restrictive covenant creates . . . .”) (emphasis added). ] 
Here, the district court erred when it applied section 542.335(1)(g) in determining whether a preliminary injunction was an appropriate and effective remedy for the enforceable restrictive covenant. See § 542.335(1)(j). Having erroneously applied section 542.335(1)(g), the district court failed to consider any harm that MacLachlan would suffer if the injunction issued. 
If Florida, and not just federal, courts follow this analysis, it could be the beginning of some relief for Florida employees.

Monday, September 7, 2015

Is It Time To Start a Union At Your Workplace?

While you're enjoying your long weekend, thanks to the labor movement, enjoying a weekend at all thanks to unions, getting paid a living wage thanks to unions, and getting ready to go back to your safe workplace thanks to the labor movement, it's time to think about this: should you start a union at your workplace?

Many of my readers have tried to change things by complaining to management, to no avail.

If management isn't listening, if working conditions are terrible, if your coworkers and you are fed up, then start thinking about forming a union at work. It isn't that hard. You might even be able to form a micro-union to represent a single department rather than the entire workplace like 41 Macy's cosmetics workers did. Don't assume you're too small to have a union.

Here's how to get started:

1. Find some coworkers you trust (and be careful who you trust) and speak to them about whether they would be interested in finding out more about starting a union. You are legally protected when you talk to coworkers about working conditions (unless you're a supervisor or someone else not covered by the National Labor Relations Act). Talk to them about what changes you would like to see made and why you think you might need help from a union. You might also join an organization like Working America to familiarize yourself with the issues affecting workers and be part of a group even before you unionize.

2. Contact a union organizer. It may seem early to do this, but I spoke to a friend at AFL-CIO and he said that just contacting them is legally protected, and they keep records of your contacting them. This contact could be evidence if your employer fires you or retaliates for your protected organizing activities. Here's where to contact an AFL-CIO union organizer to find out more about the process. The organizer may tell you to do more work before they get involved, but they can give you some guidance from the beginning.

3. Figure out which union is right for you. Different unions represent different types of employees, and which union might represent you is not necessarily intuitive. There are unions for electrical workers, engineers, communications workers, actors, writers, office workers, pretty much any job you have, there's a union for you.

4. Form an organizing committee. Your coworkers from step one will likely form the core of an organizing committee. Your union organizer can help guide you with this. You will want to develop a plan of action and how to convince a majority of coworkers to join. You'll have to do some research on wages, benefits, and other workplace issues.

5. Get a majority to sign on. The union organizer will help you prepare cards to present to coworkers who want to join. If you can sign a majority, then you will get to have an election.

6. Be prepared for employer attacks. There is a whole army of lawyers and anti-union folks who will help employers fight unions. Your union organizer can help you get ready to deal with attacks and make sure you are legally protected.

7. Win the election. You'll have to convince your coworkers that a union is the right thing for them. Again, your organizer can help you with figuring out the best way to do this.

8. Negotiate a contract. Once you're unionized, you will negotiate a contract with your employer and they can't change terms and conditions of employment without negotiating first.

There are things you can do to improve your working conditions even before you think about unionizing, but sometimes a union is the only way to get an employer to take its workers seriously.

Monday, August 31, 2015

Why Ballot Selfies Are A Terrible Idea For Workers

Indiana is facing a free speech suit relating to a law they passed making it a crime to take a photo of yourself with your completed ballot. While the law is clearly overreaching and punishes the wrong people, I think the folks saying there is no risk of voter coercion are off the mark.

In the anti-employee climate that exists now, it's only a matter of time before employers start demanding proof of how you voted. Banning the practice of ballot selfies is one way to stop this practice before it starts. Think I'm overreacting? Remember these?

Your employer really, really wants to be able to tell you how to vote. If voter selfies are allowed, what's to stop these employers from demanding you produce your selfie before clocking in on election day? And what's to stop them from firing you if you didn't vote the right way?

Well, there are some laws in some, but not all, states protecting you from discrimination based on political affiliation. There are also some states with a bit of protection for voters:
  • Michigan prohibits direct or indirect threats against employees for the purpose of influencing their vote. It also prohibits tracking of political activity.
  • Ohio, West Virginia, Pennsylvania and Kentucky ban employers from posting or handing out notices threatening to shut down or lay off workers if a particular candidate is elected.
  • Oregon makes it illegal to threaten loss of employment in order to influence the way someone votes. 
  • Washington State makes it illegal to retaliate against employees for failing to support a candidate, ballot position or political party.
  • In California, Colorado, New York, North Dakota and Louisiana it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns.
  • In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people."
Some counties and municipalities have additional protections for voters, but the one thing that doesn't protect you, unless you work for government, is the First Amendment. You have no free speech rights if you work for a private employer. The First Amendment only applies to government action.

I think you should never take a ballot selfie for this reason. It's a terrible trend that will only be abused by unscrupulous employers if it continues. What I think the laws banning them got wrong are that they are targeting the voters rather than those who may coerce them. 

I'd propose a very simple law: make it a felony to require anyone to disclose whether they voted or for whom they voted in order to continue their employment, their housing or their access to any public accommodation. I'd go one step further and make it illegal for employers to discriminate against any employee for voting, not voting, for the way they voted, and for supporting or not supporting any candidate or party. 

Punishing voters for their selfies is probably a First Amendment violation, but punishing coercion should be the law.

Monday, August 24, 2015

The War Against Florida Employees Continues With New Computer Law

Starting October 1, 2015, Florida employees can expect even more attacks by employers and former employers, thanks to the new Computer Abuse and Data Recovery Act passed by our legislature and signed by our multimillionaire Governor. This law has zero protection against employer unauthorized access of employee computers and devices. It only protects computers owned by businesses.

Message by legislature to Florida employees: you don't matter.

Message by legislature to Florida employers: how may we serve you?

It's meant to prevent hacking, but there's some nasty language in there that allows employers to sue employees for any "unauthorized" access of a computer. Your "authorized" access terminates immediately upon the cessation of your employment. So if you are fired and then print out the emails you sent to HR complaining about discrimination or blowing the whistle on illegal activity before you leave, you can possibly be sued.

It's a new law, so we can expect much litigation over what it means. What it doesn't mean, at least in my opinion, is that you have any legal restricting on printing and taking home evidence of your discrimination or whistleblower complaints before you are fired. Will some management-side lawyer try to argue that you aren't allowed to take home your evidence? Maybe.

My best suggestion is to send complaints from your home computer. Be careful out there. And vote better. The Florida legislature is not the friend of Florida employees.

Friday, August 7, 2015

Senator Franken Bill To Ban Noncompetes For Low Wage Workers Would Be A Good Start

After the Jimmy John's noncompete for sandwich maker debacle, some members of Congress asked the FTC and the DOL to investigate the sandwich chain for potential antitrust and labor law violations. Some states have moved to ban noncompetes altogether or partially. Now some Democratic members of Congress taken another step toward eradicating abusive noncompetes.

Senator Al Franken has introduced the Mobility and Opportunity for Vulnerable Employees (MOVE) Act that would ban noncompetes for employees making $15/hour or less. It would also require employers to disclose to prospective employees when they may be asked to sign a non-compete agreement upon taking a job. The bill is co-sponsored by Senators Warren, Murphy and Blumenthal.

I don't think this bill has a snowball's chance in hell of getting through the Republican-controlled Congress, but if it did, it would be a good start. This week alone I have encountered two companies that have required every single employee, from the janitor to the CEO, to sign noncompetes. That means secretaries, receptionists, copy clerks, and data entry clerks. There is no possible legitimate reason for these low level employees to have noncompetes. Unless legislatures stop this kind of abusive practice, these low-level employees are going to be virtual slaves.

What is the effect of low-level employee noncompetes? I can think of several:

  • Wages are suppressed as employers figure they don't have to give wages to trapped employees
  • Discrimination and whistleblower retaliation rise as employers feel they can abuse trapped employees
  • Competition is suppressed, which is why these agreements violate antitrust laws
  • Employees can't afford to fight, so they are stuck

I'd like to see more protections for employees. For instance, undue hardship should be a mandatory consideration before any injunction is issued. Here in Florida, the legislature has banned courts from considering hardship on the human people that are employees, so the courts can only consider hardship on the corporate "people" that are employers. I think this is an equal protection problem.

If employees are terminated without cause, noncompetes shouldn't be enforced unless the employer pays out the noncompete period.

If you think that Senator Franken's bill is a good idea, call your senator and tell them so. Only if human people step up and fight for their rights against corporate "people" will anything be passed to protect workers.

Monday, July 27, 2015

EEOC Says Sexual Orientation Discrimination Is Already Illegal

This is my first post (other than the blog carnival) since I got a concussion. A lot has happened in the interim, so I have a lot to catch up on. This week I want to cover what I think is probably the most important development in discrimination law in a long time. That is, the EEOC has issued a decision that Title VII's prohibition against sex discrimination also prohibits sexual orientation discrimination.

But this is nothing new, you say? Sure, EEOC has been opining that transgender employees are protected under sexual stereotyping. They've also overturned "unable to determine" dismissal letters, ordering investigators to process sexual orientation discrimination charges under the category of sexual stereotyping. 

What's different is that this is the first time the agency has recognized that sexual orientation discrimination is flat-out sex discrimination. That is, the employer is treating the employee differently because of their gender. Here's the reasoning:

Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. "Sexual orientation" as a concept cannot be defined or understood without reference to sex. A man is referred to as "gay" if he is physically and/or emotionally attracted to other men. A woman is referred to as "lesbian" if she is physically and/or emotionally attracted to other women. Someone is referred to as "heterosexual" or "straight" if he or she is physically and/or emotionally attracted to someone of the opposite-sex.  Sexual orientation refers to the sex of those to whom one is sexually and romantically attracted." It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and. therefore, that allegations of sexual orientation discrimination involve sex-based considerations. One can describe this inescapable link between allegations of sexual orientation discrimination and sex discrimination in a number of ways.  
Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex. For example, assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk , but does not suspend a male employee for displaying a photo of his female spouse on bis desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male. That is a legitimate claim under Title VII that sex was unlawfully taken into account in the adverse employment action. ("Such a practice does not pass the simple test of whether the evidence shows 'treatment of a person m a manner which but for that person's sex would be different.'"). The same result holds true if the peron discriminated against is straight. Assume a woman is suspended because she has placed a picture of her husband on her desk but her gay colleague is not suspended after he places a picture of his husband on his desk. The straight female employee could bring a cognizable Title VII claim of disparate treatment because of sex.

(citations omitted).
Put more simply, sexual orientation discrimination is sex discrimination because, if Jane loves Janice and she is discriminated because of that, had Jane been a man and loved Janice she would not have been subjected to discrimination. But for her gender, Jane would not have been discriminated against for loving Janice.

This is an argument I've made for years and people looked at me like I was insane. It's good to be vindicated.

This goes well beyond sexual stereotyping, which didn't cover all sexual orientation claims; it only applied where gay and lesbian employees didn't fit into stereotypical gender roles.

Will the courts apply this reasoning? I'm guessing some will and some won't, and we'll be back in front of the Supreme Court. If you ever thought that your choice of President doesn't matter, think of those Supreme Court appointments. What will the Court look like when this case finally gets to them? That's up to you.

Wednesday, July 15, 2015

Employment Law Blog Carnival: Summer Holiday Edition

I happen to be smack between summer vacations right now, so vacation is definitely on my mind. Odds are, you've either taken a summer vacation already or are getting ready to. Or are you like one of those people in the commercial who don't use your paid vacation days? I agree with the kid who says, "That's the stupidest thing I ever heard." What the heck are you working for if it isn't to pay for things like travel and fun?

Everyone knows about the Fourth of July, but did you know that July is chock full of holidays? You've already missed International Nude Day, Compliment Your Mirror Day, International Cherry Pit Spitting Day and Gruntled Workers' Day (time to calendar these for next year). But it's not too late. If you haven't already celebrated your independence from work this month, here are some holidays you may want to take time off to celebrate:

July 15 is Be a Dork Day. But don't be a dork and get the overtime rules wrong or you'll pay (and pay and pay) for it later. Read Eric Meyer's Five ways for proactive employers to prepare now for the new OT rules at The Employer Handbook while visiting the Cesar Chavez Monument in Keene, California if you want to avoid terminal workplace dorkdom.

July 18 is International Nelson Mandela Day. Maybe a trip to South African isn't in the cards this year, but you can honor him by learning more about discrimination. Listen in on What is Workplace Discrimination? A Podcast Interview with Casey Sipe at Blogging 4 Jobs by Jessica Miller-Merrill to catch up on the latest info about workplace discrimination while visiting The King Center in Atlanta.

July 20 is Ugly Truck Day, and ugly trucks seem to go in hand with Confederate Flags. In honor of this holiday, check out Daniel Schwartz's post at the Connecticut Employment Law Blog, Can Employee Display a Confederate Flag on Facebook as Free Speech? Or Can Employer Take Action? while heading to South Carolina or the nearest monster truck rally.

July 20 is also National Get Out Of The Doghouse Day. There's no better way to get in the doghouse with employees than to screw up on Family and Medical Leave. In the Employment Essentials blog by Jana Grimm and Marty Saunders you can read about the latest case on this sometimes confusing law, Worth the Price Of Admission: Third Circuit Defines "Overnight Stay" Under The FMLA while staying overnight in your favorite hotel.

July 24 is Tell An Old Joke Day. Some of those old jokes are, let's say, NSFW. But when can an employee get away with making racist comments at work? Jon Hyman's post Racist comments as protected concerted activity (really!) at the Ohio Employer's Law Blog will enlighten you while you're on your way to visit your local comedy club.

July 24 is also National Tequila Day. You can celebrate by reading about English-only workplace rules. Michael McClory's post Mid-Summer Pop Quiz: Cold Beer From The Enforcement Agencies? at Bullard's Employment Law Age gives you a pop quiz you can take while heading to your local Mexican restaurant for a pitcher of margaritas.

July 25 is National Dance Day. Since there's lots of dancing at weddings, and there are lots of same-sex weddings going on nationwide, this is a fine day to read Heather Bussing's Religion v. Law post at HR Examiner while visiting the Supreme Court in DC.

July 26 is All Or Nothing Day. It's a good day to talk to your boss about paying all the expense reimbursements you are owed. Sharlyn Lauby's Company Refuses to Reimburse Expenses – Ask #HR Bartender may help. And if you finally get reimbursed, you can take that weekend vacation and celebrate.            

July 26 is also Disability Independence Day. You can celebrate by reading Hanna Weiss's post at Blogging 4 Jobs, What Companies That Hire with Disabilities Won't Tell You while visiting the American Veterans Disabled for Life Memorial next to the U.S Botanic Gardens in DC.

July 26 is National Parents' Day (a popular day for holidays!). To understand the rights of soon-to-be parents, read Robin Shea's EEOC’s revised pregnancy guidance: Now, just barely more flexible! at Employer and Labor Insider while on your way to a romantic getaway for two (while you can) or Disney if that ship has sailed.

July 27 is Walk On Stilts Day. If your boss thinks it's a good idea to make you walk on stilts at work, is it a constructive discharge? Read Stuart Rudner's post Deconstructing Constructive Dismissal to find out. Sounds like a good day to visit the circus or the Ringling Brothers Museum.

July 30 is the International Day of Friendship. Can't we all just get along? It's a good day to revisit how we treat transgender employees. Janette Levey Frisch's post at The Employerologist, What OSHA Has To Say About Restroom Access For Transgenders just might help us treat transgender employees a little better.

July 30 is also Medicare's Birthday. You can celebrate the 16.4 million people who have gained healthcare coverage thanks to the Affordable Care Act by reading Ari Rosenstein's What the ACA Supreme Court Decision Means To Small Employers at the Small Biz HR Blog while patronizing a small bed and breakfast.

July 31 is National Talk In An Elevator Day. An elevator may be just the place to corner a witness you want to talk into providing an affidavit. But will it be admissible? Find out by reading Robert Fitzpatrick's A Sham or Just Self-Serving? Either Way, Affidavits Are Admissible at Fitzpatrick On Employment Law while headed to the Empire State Building.

So c'mon folks. Use those vacation days and enjoy your summer. Because, as they say in the commercial, one more day is priceless.

Friday, June 5, 2015

Court Imposes FMLA Catch-22

If you arrive at a friend's house at 12:05 a.m. and leave 14 hours later, would you say you stayed overnight? Of course you would. It's common sense. But common sense is sadly lacking in employment law many times.

In a case where an employee faced a FMLA Catch-22, the Third Circuit said that an employee who arrived at the hospital before midnight but who was actually admitted after midnight didn't stay overnight, and so was not protected by FMLA.

Why is "overnight stay" important? Well, the FMLA statute itself says zero about overnight. It says:

(11) Serious health condition
The term “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves—
(A) inpatient care in a hospital, hospice, or residential medical care facility; or
(B) continuing treatment by a health care provider.

The regulations, though, say this:

§825.113 Serious health condition.
(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.
§825.114 Inpatient care.
Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity as defined in §825.113(b), or any subsequent treatment in connection with such inpatient care.
So, although the statute says "inpatient care," the regs say "overnight stay." Oy vey. Bottom line is that, at least in the 3rd Circuit, in order to be covered under FMLA for an inpatient stay, you must have been actually admitted (remember, many ER visits don't count as being "admitted," and you can be stuck there for many hours before being actually admitted, so too bad for you if the hospital has a busy night) in one calendar day and discharged in a different calendar day AND stay at least 8 hours once you're admitted.

You'd think being tortured in the hospital for 14 hours, plus however many hours it took them to admit this poor employee would be enough, but no. And you'd think an employer wouldn't fire someone for being in the hospital, but no.

This is another example of how the laws fail employees on a regular basis.

Friday, May 15, 2015

San Francisco Enacts Employee Bill Of Rights - What Rights Would You Put In?

San Francisco's employees now have rights, at least in the retail sector. The city has enacted a Retail Workers'  Bill Of Rights that includes rights such as:
  • Offering extra hours to existing employees before hiring new employees or using subcontractors or temps;
  • New owners must retain existing employees for at least 90 days;
  • Provide a written estimate of the shifts and schedules employees will work before they start;
  • Post schedules 2 weeks in advance;
  • Provide advance notice of schedule changes and pay up to 4 hours for last minute shift cancellations;
  • Provide on-call pay for all on-call shifts, whether or not actually called into work;
  • Give part-time employees the same hourly rate and access to PTO as full-time employees.
While this is a good start, and should help those in the retail sector, what about other employees? In states like our pro-employer state of Florida, we need our own bill of rights for employees. Here's some of what I'd put in a Florida Employees' Bill of Rights:
  1. True right to work: No restrictions on working for competitors. Instead, the restrictions would only be on stealing trade secrets.
  2. My free time is my own: No monitoring of employees when they're off the clock, and no firing employees for legal off-duty activities.
  3. Right to work in peace: Bullying doesn't belong in workplaces any more than in schools. Zero tolerance for workplace bullies.
  4. Right to reasonable breaks: Right now we have zero laws that require any work breaks in Florida. It's time we give employees reasonable rest and meal breaks.
  5. Right to a copy of anything you sign: If your employer makes you sign a warning, policy or contract, you should be provided a copy the same day you sign and anytime you request it.
  6. Fair time to review contracts: Prospective employees should be provided copies of any and all contracts and agreements they will be expected to sign before they accept the offer. 
  7. Consideration for contracts: Ban all sign-or-be-fired contracts and instead require reasonable consideration for any employment contract.

So, what would you put in your employee bill of rights? 

Friday, May 8, 2015

What Did The Florida Legislature Do For Employees? Diddly squat, with one silly exception

I previously wrote about a plethora of bills our legislators filed that might help employees in our anti-employee state. 

Pregnancy:  This is the one silly exception to the utter lack of pro-employee bills by the legislature. It adds "pregnancy" to the list of prohibited types of discrimination under the Florida Civil Rights Act. Only problem is that the Florida Supreme Court already decided pregnancy was protected. Why was the bill necessary? No idea. Here's where it stands as of this writing:

SB 982: Florida Civil Rights Act

GENERAL BILL by Thompson ; (CO-INTRODUCERS) Smith ; Gibson
Florida Civil Rights Act; Prohibiting discrimination on the basis of pregnancy in public lodging and food service establishments and in places of public accommodation; prohibiting employment discrimination on the basis of pregnancy; prohibiting discrimination on the basis of pregnancy by labor organizations, joint labor-management committees, and employment agencies, and in occupational licensing, certification, and membership organizations, etc.
Effective Date: 7/1/2015
Last Action: 5/7/2015 - Signed by Officers and presented to Governor
Location: Presented to Governor
Kudos to all the legislators who at least tried to do something to help Florida's hardworking employees (their names are here if you want to thank them for their efforts). Here's what the legislature's website says happened to the rest of the pro-employee bills (hint: unless it says it was presented to the Governor or the Governor signed it, it's dead):


HB 455 - Labor Regulations

General Bill by Campbell
Labor Regulations: Designates act as "Florida Overtime Act of 2015"; revises number of hours of labor that comprise legal day's work; revises rates of overtime compensation for labor performed in excess of certain of hours of work; provides that commuting to & from certain locations is not part of day's work; prohibits employer from requiring employee to continue working after employee's shift under certain circumstances; prohibits employer from paying employee for less than amount of contracted hours worked by employee; provides penalties; provides that act does not affect employer's liability under Workers' Compensation Law.
Effective Date: July 1, 2015
Last Event: Withdrawn prior to introduction on Tuesday, February 10, 2015 3:03 PM
 SB 890 - Labor Regulations

General Bill by Bullard
Labor Regulations: Revising the number of hours of labor that comprise a legal day’s work; prohibiting an employer from requiring an employee to continue working after the employee’s shift under certain circumstances; prohibiting an employer from paying an employee for less than the amount of contracted hours worked by the employee; providing penalties; providing that the act does not affect an employer’s liability under the Workers’ Compensation Law, etc.
Effective Date: 07/01/2015

Last Event: 02/27/15 S Withdrawn prior to introduction -SJ 93 on Friday, February 27, 2015 2:48 PM
Sick Time:

SB 1490 - Labor Regulations

General Bill by Thompson
Labor Regulations: Requiring certain employers to provide employees with earned sick and safe leave under certain conditions; providing employer and employee requirements; authorizing an employee to file a civil action under certain conditions; providing penalties, etc.
Effective Date: 07/01/2015

Last Event: 03/03/15 S Introduced -SJ 138 on Tuesday, March 03, 2015 9:31 PM

HB 589 - State Minimum Wage
          General Bill by Jacobs (CO-SPONSORS) Pafford
State Minimum Wage: Prohibits employer or any other party from knowingly procuring labor from any person with intent to defraud or deceive such person; provides penalty.
Effective Date: July 1, 2015
Last Event: 1st Reading on Tuesday, March 03, 2015 10:37 PM

SB 892: Safe Work Environments

Safe Work Environments; Citing this act as the “Safe Work Environment Act”; providing that subjecting an employee to an abusive work environment is an unlawful employment practice; prohibiting retaliation against an employee who has opposed any unlawful employment practice or who has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding concerning such a claim; limiting an employer’s liability for emotional distress and precluding punitive damages in certain circumstances, etc.
Effective Date: 7/1/2015
Last Action: 3/3/2015 Senate - Introduced -SJ 93
Location: In committee/council (CM)

HB 297 - Safe Work Environments

General Bill by Campbell
Safe Work Environments: Creates "Safe Work Environment Act"; provides that subjecting employee to abusive work environment is unlawful employment practice; prohibits retaliating against employee who has opposed any unlawful employment practice, or who has made charge, testified, assisted, or participated in any manner in investigation or proceeding concerning such claim; provides for vicarious liability for employers in certain circumstances; provides defense; provides for liability for individual employees in certain circumstances; provides defense; provides affirmative defenses; specifies relief available; limits employer's liability for emotional distress & precludes punitive damages in certain circumstances; specifies that provisions may only be enforced by private right of action; provides time limitation on actions; provides that remedies provided shall be in addition to & not in place of other remedies provided in law; provides for screening certain persons public & private school entering instructional areas.
Effective Date: July 1, 2015
Last Event: 1st Reading on Tuesday, March 03, 2015 10:37 PM

Domestic violence and unemployment:

SB 1096: Unemployment Compensation
Unemployment Compensation; Clarifying application of a provision relating to disqualification for benefits; providing that certain victims of domestic violence may not be disqualified for benefits for voluntarily leaving work, etc.
Effective Date: 7/1/2015
Last Action: 3/3/2015 Senate - Introduced -SJ 108
Location: In committee/council (CM)
Intern sexual harassment:

HB 433: Employment Discrimination
Employment Discrimination; Includes unpaid interns within definition of term "employee" for purposes of Florida Civil Rights Act of 1992.
Effective Date: 7/1/2015
Last Action: 3/3/2015 House - Introduced -HJ 37
Location: In committee/council (CJS)
Fair pay:

SB 98: Employment Discrimination

GENERAL BILL by Joyner ; (CO-INTRODUCERS) Sachs ; Soto
Employment Discrimination; Creating the Helen Gordon Davis Fair Pay Protection Act; recognizing the importance of the Department of Economic Opportunity and the Florida Commission on Human Relations in ensuring fair pay; creating the Governor’s Recognition Award for Pay Equity in the Workplace; requiring that the award be given annually to employers in this state which have engaged in activities that eliminate the barriers to equal pay for equal work for women, etc.
Effective Date: 7/1/2015
Last Action: 3/3/2015 Senate - Introduced -SJ 39
Location: In committee/council (CM)

Increase state minimum wage:

HB 47 - State Minimum Wage

General Bill by Stafford (CO-SPONSORS) Cortes, J.; Watson, B.; Watson, C.
State Minimum Wage: Increases state minimum wage; provides that an employer may not pay employee at rate less than state minimum wage; deletes requirement that only individuals entitled to receive federal minimum wage are eligible to receive state minimum wage.
Effective Date: January 1, 2016
Last Event: 1st Reading on Tuesday, March 03, 2015 10:37 PM

Social media privacy:

SB 126 - Social Media Privacy

General Bill by Clemens (CO-SPONSORS) Latvala
Social Media Privacy: Prohibiting an employer from requesting or requiring access to a social media account of an employee or prospective employee under certain circumstances; prohibiting an employer from taking retaliatory personnel action for an employee’s refusal to allow access to his or her social media account; authorizing civil action for a violation; specifying that an employer is not prohibited from seeking access to social media accounts used primarily for the employer’s business purposes, etc.
Effective Date: 10/01/2015
Last Event: 03/03/15 S Introduced -SJ 41 on Tuesday, March 03, 2015 7:55 AM
Ban the box:

SB 214: Discrimination in Employment Screening

GENERAL BILL by Clemens ; (CO-INTRODUCERS) Bullard ; Smith
Discrimination in Employment Screening; Prohibiting an employer from inquiring into or considering an applicant’s criminal history on an initial employment application unless required to do so by law, etc.
Effective Date: 7/1/2015
Last Action: 3/3/2015 Senate - Introduced -SJ 46
Location: In committee/council (CM)

Sexual orientation discrimination: This was the one bill I predicted might pass due to bipartisan support and support by major Florida corporations. It's DOA anyhow.

SB 156: Prohibited Discrimination

GENERAL BILL by Abruzzo ; (CO-INTRODUCERS) Bullard ; Ring ; Margolis ; Soto
Prohibited Discrimination; Creating the “Florida Competitive Workforce Act”; revising provisions to include sexual orientation and gender identity or expression and the perception of race, color, religion, sex, national origin, age, sexual orientation, gender identity or expression, handicap, or marital status as impermissible grounds for discrimination; adding sexual orientation and gender identity or expression as impermissible grounds for discrimination, etc.
Effective Date: 7/1/2015
Last Action: 3/3/2015 Senate - Introduced -SJ 42

Location: In committee/council (JU)

Friday, May 1, 2015

Supremes to Employers: No, We Won't Make EEOC Force You To Settle

In one of the most bizarre employer appeals I've ever seen, a company called Mach Mining asked the Supreme Court to dismiss a suit by EEOC because EEOC didn't engage in sufficient conciliation efforts. Conciliation is a fancy term for trying to settle a case. It's done after EEOC makes one of those rare findings of "cause" for a discrimination charge.*

That's right: this was an employer’s beef about EEOC not trying hard enough to make the employer settle. It was much ado about . . . well, not nothing, but certainly not much. While I’d have been happy if the Supremes had ordered EEOC to beat lawbreaking employers into settling with, say, a cat o’ nine tails, I didn’t expect them to do so.

The Supreme Court in Mach Mining confirmed what EEOC has been saying all along, namely, that the courts can’t involve themselves in the conciliation process. The Supreme Court did say that EEOC does indeed have to inform employers about the specific wrongdoing it has found and which employees suffered from the wrongdoing, and then try to engage the employer in a discussion to give the employer a chance to fix the problem. However, the sole remedy for EEOC’s failure to comply is to stay the proceeding and require EEOC to conciliate. So it will work similarly to a court ordering the parties to mediate before trial.

This makes perfect sense, since there is absolutely no realistic way for a court to decide if one party is being unreasonable in a settlement discussion. While EEOC has to try to get the employer to voluntarily comply with the law, the courts are not going to tell it how to accomplish that. Employers are calling it a "win," but it's mostly a big ball of nothing.

Employers should be really glad that the Supreme Court didn’t order EEOC to get more forceful with scofflaw employers.  Taxpayers and employees lose out when employers fail to conciliate reasonably and EEOC has to sue employers to enforce the law.

This case will have zero effect on employees who sue on their own. It only applies to cases where EEOC sues on behalf of employees. We already know that this is about as likely as getting hit by lightning. Bottom line: don't worry about it. It probably doesn't apply to your case or you.

* The alternative to a "cause" finding is NOT a "no-cause" finding, although this is what management-side lawyers like to call it. It's an "unable to determine" finding, saying that they can't determine one way or the other whether discrimination occurred, and they issue a right to sue letter.