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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.