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, 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.