Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, April 24, 2015

Madison Enacts Law Protecting Atheists Against Discrimination (But Atheists Are Already Protected Against Religious Discrimination Under Title VII)

While the anti-discrimination ordinance enacted in Madison, Wisconsin adding “nonreligion” to the list of protected categories was touted as the first of its kind in the nation, that’s not quite true. While it may well be the first ordinance specifically protecting those who have no religion, there is already a federal law protecting atheists against work place discrimination.

Under Title VII, the federal employment discrimination law, atheists have long been considered to be protected under the prohibition against religious discrimination. That doesn’t mean there’s no need for laws specifically protecting atheists against discrimination.

Indeed, atheists are one of the most discriminated against groups in the U.S. and the world.

While it’s unconstitutional to impose a religious test on candidates, seven states still have laws on the books requiring candidates to have a belief in god. Even though these laws would likely not pass legal muster if challenged, it’s still almost impossible for a professed nonbeliever to be elected in the U.S. Voters would prefer Muslim, gay or pretty much anyone to atheist candidates. Like gays in the past (and some still in the present), many atheists are closeted to avoid the stigma of simply not believing what others believe.O

According to the American Humanist Association: About half of Americans would object to their child marrying an atheist, and only 33% would hire an atheist in a child care position. Thirteen countries revoke citizenship, deny marriage and even kill atheists.

Whether you like them or not, it’s illegal for employers to discriminate against atheists. Further, if an atheist asks for a religious accommodation like being excused from a religious invocation at the beginning of staff meetings, the employer must grant the accommodation.

If a believer of any religion proselytizes to an atheist employee and the atheist asks them to stop, continued proselytizing could be illegal religious harassment. If an atheist employer goes to HR and reports this kind of harassment, HR needs to treat it the same as any other kind of religious harassment and nip it in the bud.

The reason I think this ordinance is a positive step is that many employers don’t realize atheists are legally protected. I hear, “That’s not a religion,” all too often. At least in Madison, it will be clear to employers that they can’t discriminate against those with no religion.

If you think you’ve been discriminated against at work, contact an employment lawyer in your state about your rights. And you do have rights.

Friday, April 17, 2015

How To End Sandwich Noncompetes?: Tie Them To CEO Pay

Problem 1: CEO Pay Gap

CEO pay has been in the news a lot lately, and for good reason. CEOs make, on average, about 300 times what their average workers make. Hillary Clinton has made CEO pay part of her campaign. Where CEO pay jumped an average 13% in 2014, rank and file workers saw only a 2% average increase. Fast food CEOs make $5859/hour, while their rank and file suffer below the poverty level at minimum wage. The pay gap at Disney between the CEO and median worker wages is 2238 to one.

And then there's this guy, who slashed his $1 million/year salary at Gravity Payments to provide a minimum salary at his corporation of $70,000/year. If you have a chance to do business with Gravity Payments, do it please. Let's support a truly decent CEO.

Problem 2: Rise In Minimum Wage Noncompetes

The other trend I'm seeing is the drastic increase in noncompete agreements among low-level workers, highlighted by the infamous Jimmy John's noncompetes for sandwich makers. One in four Americans have signed a noncompete agreement at some time and 12.5% say they're bound by one now.

While noncompete agreements are supposed to prevent high level workers who have important company secrets from running off and selling them to competitors, what they're being used for now is to prevent competition and lower wages. Yes, that's illegal. It's called antitrust. But many judges are convinced by management-side lawyers to apply them lower and lower on the food chain despite antitrust laws.

My Proposal: Pay 'Em Or Let 'Em Go

So here's my thought. If a worker has truly valuable information the company doesn't want them to run off with, surely they're paid well, right? I mean, you wouldn't hand your secret recipe to the minimum wage janitor, would you? Well, if you do, you shouldn't. And companies shouldn't be able to force employees to keep working for them when they don't pay them fairly.

My proposal is simple.Why not, in addition to saying noncompetes are only to protect valuable secret information, tie their enforceability to CEO pay? I propose a law that says noncompetes are not enforceable against anyone who doesn't make at least half what the CEO or other highest paid employee makes. Pay them handsomely to keep secrets and not work for a competitor, you get to force them to do so. Don't want to pay them? Let them go to a competitor and make a living elsewhere.

Maybe if noncompetes are tied to CEO pay, corporations will think twice about letting CEO pay run amok at the expense of rank and file workers.

Friday, April 10, 2015

How Not To Screw Up Your Severance Negotiation: Underbidding

So you've decided to negotiate your own severance package. If you're an experienced negotiator like a salesperson or mediator, then maybe you can handle it without screwing up. But if you aren't, then you may make some big mistakes. I thought I'd talk today about one of the worst mistakes you can make: underbidding.

Let's say you're fired or laid off and you are handed a severance package for 8 weeks of severance. You don't think. You run into HR and say you won't sign unless they give you 12 weeks. Done, they say.

But then you go home and think about it. You realize that you were let go a week after you reported age discrimination. Or you take a look at who else was targeted and it's everyone who had signed a petition to get management to raise wages. You have potential claims, and that means leverage. So you go see an employment lawyer.

Normally I'd tell you that I think you have leverage to ask for more, but you did ask for more, told them what you wanted, and they gave it. Now you've come to me to see if I can ask for even more.

I can tell you right now that this employer is almost certainly not going to negotiate any further with you or me. They gave you what you asked for. As they see it, if they give more, you'll keep asking for more. You underbid. You screwed up.

Or maybe they didn't accept your number, and you go to a lawyer to try to ask for more. Even then, most employers (and their lawyers) won't start a negotiation over what you last asking price was. Underbidding can cost you.

Here's what you should have done:

  1. Take the proposed agreement home and read it carefully, and if you don't understand it take it to a lawyer.
  2. Think about what potential claims you have against the employer. Did they fail to pay overtime? Discriminate based on age, race, pregnancy, sex, national origin or other protected category? Fire you right after you objected to something they were doing that was illegal? If so, write it down and take it to a lawyer along with the agreement.
  3. Don't try to negotiate for yourself if you aren't an experienced negotiator.
  4. Don't try to negotiate when you're still in shock from being told you don't have a job, no matter how much experience you have.

If you realize you underbid, then you'll likely have to pursue your legal remedies if you want to take the matter further. Whether that's filing with EEOC or NLRB, suing or filing a wage theft claim, you have to be ready to pass on what they've offered and take your chances with a legal case if you really think you asked for too little.

Only in the most exceptional circumstances, like discovering that they let everyone over 50 go or finding a smoking gun, will you be able to bring the employer back to the table if you underbid.

"He who represents himself has a fool for a client." Abraham Lincoln.