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Monday, February 23, 2015

More Pro-Employee Bills To Watch In The Florida Legislature

To their credit, some Florida legislators are doing their darndest to try to fix Florida's anti-employee legal climate. I wrote about some pro-employee bills filed, and now there are some more to keep an eye on this legislative session:

Banning employer fraud: A bill proposed would make it illegal for an employer to procure an employee's services fraudulently, and also beefs up anti-retaliation provisions for employees who complain about unpaid wages.

Pregnancy discrimination: Two identical bills would add pregnancy to the protected classes under the Florida Civil Rights Act. I'm not sure why this is being done in light of the Florida Supreme Court's ruling last year that pregnancy is already protected.

Overtime: Another bill changing Florida's overtime pay law from 10 hours per day to 8 was withdrawn, but this new bill replaces it.

Bullying: A second bill that would ban workplace bullying has been filed.

Unemployment: A bill that would modify unemployment qualifications is a mixed bag. It would protect victims of domestic violence but also would disqualify disabled employees who turn down a reasonable accommodation offered. Disabled employees will now face a trial over their discrimination claims in the unemployment proceeding if this bill passes. Overall, I think it's more anti-employee than pro-employee.

I'll be keeping an eye on these bills during the session. Wanna bet that zero pro-employee bills will pass? I won't hold my breath that this legislature or governor would do anything to help the majority of its working citizens.

Monday, February 16, 2015

Florida Bill Would Make It A Crime To Change Male Baby's Diaper In Ladies' Room

In a proposed bill directed at legalizing both discrimination and harassment of transgendered people, Florida Representative Frank Artiles (R- Hell, er, I mean, Miami) has proposed a bill making it a crime for a person born of one sex to enter a public restroom designated for the other sex. The point, I believe is to maximize humiliation and embarrassment for both pre- and post-op transgendered citizens and tourists of Florida.

The bill says:
"Sex" means a person's biological sex, either male or female, at birth. For purposes of this paragraph, the term "male" means a person born as a biological male and the term "female" means a person born as a biological female.
The crime:
A person who knowingly and willfully enters a single-sex public facility designated for or restricted to persons of the other biological sex commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
The supposed purpose:
The purpose of this act is to secure privacy and safety for all individuals using single-sex public facilities.
It even provides that you can sue the person who enters the restroom and the owner of the restroom:

A person who knowingly and willfully enters a single-sex public facility designated for the other biological sex is liable in a civil action to any person who is lawfully using the same single-sex public facility at the time of the unlawful entry for the damages caused by the unlawful entry, together with reasonable attorney fees and costs.
An owner of public accommodations, a school, or a place of employment who maintains single-sex public facilities and advertises, promotes, or encourages use of those facilities in violation of subsection (2), or fails to take reasonable remedial measures after learning of such use, is liable in a civil action to any person who is lawfully using those facilities at the time of the unlawful entry for the damages caused by the unlawful entry, together with reasonable attorney fees and costs.
So let's think about the effect of this really stupid bill.  Here are just some of the ridiculous consequences that will result if passed:

  1. You're a business owner. A harried mom with a baby and a male toddler asks for directions to the ladies' room. You don't stand and bar the door. Instead, you're a human being. You direct her to the restroom. You can be sued. The male toddler can be arrested. If the baby is male, he can possibly be arrested, or the mom could be arrested for contributing to the delinquency of a minor.
  2. You're a business owner. A major client was born male but dresses as a female, considers herself female, and has had the operation to become female. You can't let her use the ladies' room. Bye, bye client.
  3. You're in the ladies' room. A person who dresses like a male, has a beard, and a low voice enters the ladies' room. Oh, yeah. He has a penis. It turns out the male was born female. Not only do you have to let him use the facility, but the business owner will be sued if they try to prevent this. 
  4. You were born male but dress as a female. You consider yourself female. Your coworkers and boss have accepted you as a female. It is a crime for you to use the ladies' room. You have to use the men's room, explain to customers why you are in the men's room, and risk being attacked in the men's room by anyone who is either homophobic or just a rapist. 
  5. You're a middle school principal. Some 12-year-old boys think it's hilarious to toss a mouse into the girl's room. The girls scream. You catch the boys running away. The school can be sued if it fails to take unspecified "remedial measures" regarding the prank, and the boys just committed a crime.
  6. You're an employer. Your employee is a female who identifies as male. She dresses like a male, has taken hormones that cause her to have a beard, and goes by a male name. You have to require him to use the ladies' room. Your female employees object and say it's sexual harassment to have him there. Female customers object. You're damned if you do and damned if you don't let him use the men's room. You're sued either way.

As a female who identifies as female, I really don't appreciate the Florida legislature telling me that I have to share the ladies' room with a female-born who identifies as a male, nor that I would have to leave a male toddler outside the ladies' room in order to use it. As a business owner, I don't appreciate the Florida legislature telling me I have to humiliate a client or an employee.

This is the dumbest thing I've ever seen out of the Florida legislature, and that includes the fact that they failed to pass a law against bestiality for years, until it finally passed in 2011 (apparently the pro-bestiality lobby is strong in Florida). Hopefully the Florida legislature will realize this bill for the dumba** proposition it is and vote it down.

I'm not optimistic.

Monday, February 9, 2015

Odds Of Getting EEOC To File Suit For You? Not Much Better Than Odds Of Getting Struck By Lightning

EEOC has issued its 2014 Performance Report and the big news everyone announced was that the number of charges dropped. What I found disturbing when I read the summary was that there were 88,778 charges filed nationwide, and of those EEOC only filed 133 "merit" suits, that is, suits where they found cause and decided to sue on behalf of an individual or group of employees.

So the odds of having EEOC sue on your behalf are .1% (133/88778=.001), or about 1 in 1000. Now, when I'm telling clients that they shouldn't hold their breath and hope for EEOC to file suit on their behalf, I usually say that the odds are about the same as getting struck by lightning, and I laugh. I thought I was being facetious. So I looked it up.

The odds of getting struck by lightning in your lifetime are about 1/3000. So you're about three times as likely to have EEOC file a suit on your behalf as you are to be struck by lightning. Not great odds.

Here in Florida, the odds of getting struck by lightning in your lifetime are probably higher. There were 7528 EEOC charges filed in Florida in 2014. I've asked for the number of merit suits filed and if it isn't more than 3 (I only found press releases for two) then the odds here are about the same as getting struck.

So, when employers complain that EEOC isn't fair to them, I'll add this to my list of why I'll only play them the world's smallest violin.

Monday, February 2, 2015

Can Your Employer Force You To Sign A Contract Saying You Volunteered To Work On Sunday?

It's been awhile since I answered my reader questions here. This question is one I found interesting:

I have a question about unfair work practices. My husband works for a very large company that does extremely high volume during the Christmas season. All employees were required to work on Sunday (following a six day work week). They were told that everyone was expected to be there despite the fact that no one had a day off during the week. This morning when they arrived, they were told that they had to sign a document that said they had volunteered to work on Sunday, otherwise they would be sent home. Most of them signed because they were already there and had planned on working today. Are companies allowed to do something like this?

I can read this question three different ways, so I'll address them all. 

Agreement to volunteer to work for free: The first way I read it is whether your employer can make you sign an agreement that you are a volunteer so as to avoid paying you. The answer is a flat-out no. An agreement that tries to waive your right to overtime or to be paid for all hours worked under the Fair Labor Standards Act is not enforceable. Furthermore, if you work for a for-profit company, you are never a "volunteer" such that you can agree to work for no pay. If the employer suffers or permits you to work, then you are entitled to pay.

Agreement to waive religious accommodation: If you have requested a religious accommodation to work on Sunday, then the EEOC and courts would refuse to enforce an agreement waiving future discrimination. In other words, you can't be forced to sign an agreement to be discriminated against in the future. On the other hand, where states like Florida allow employees to be required to sign agreements in consideration of continued employment, if the employer handed you an agreement on Monday that said you were agreeing that you waived your right to sue for religious discrimination because you worked voluntarily on Sunday, would that stand? The truth is, maybe. The courts have been very harsh on employees regarding noncompete agreements and arbitration agreements that are presented as "sign or be fired," so would a "sign or be fired" release fly? I think probably not, but I'd never underestimate the ability of employers to push for case law that grinds employees' rights into dust. Allowing a waiver like that immediately after an act of discrimination for the sole consideration of continued employment would make a mockery of the employment discrimination laws. If an employer presents you with an agreement saying sign a waiver of discrimination that just happened or be fired, I think that would be unlawful retaliation and discrimination.

Agreement to work on Sunday: If the agreement simply says that you agree to work on Sunday, and you don't have any need for a religious accommodation, then your employer can make you sign an agreement to work on Sundays, and they can say you voluntarily agreed to work on Sundays. Which I guess is true, if they mean you "voluntarily," under threat of losing your job, decided to sign. If you live in one of those states like Florida that doesn't consider "sign or be fired" to be economic duress, then they can probably make you agree.