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, 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.