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 26, 2017

Will My Employment Law Claim Show Up In A Background Check?

I'm constantly asked about whether certain actions against employers for discrimination and other issues will show up in a background check. Other than a lawsuit, most probably will not. And now, even with a lawsuit, a court just allowed a plaintiff to go forward with a sex discrimination suit as "Jane Doe" so her reputation would not be damaged.

So, what kinds of actions will and won't show up on a background check? Here are my thoughts:

Severance agreements: Negotiating a severance agreement should be confidential. While most employers put in the agreement that employees will keep the agreement confidential, I ask that this be made mutual. I don't want employers getting cut and saying something like, "I need to look at the agreement to see what I'm allowed to say." One of the things you can negotiate is what will be said to potential employers in references.

EEOC: While EEOC is a government agency, EEOC charges of discrimination are not generally discoverable. Only the employer and employee are entitled to copies of the charge and responses. While some employers and employees wrongly say that they are in a lawsuit once the EEOC filing is done, this is incorrect. EEOC is not a lawsuit. It is not public record. If EEOC files a lawsuit on your behalf (don't hold your breath) then the suit is public record.

NLRB: The NLRB investigation process is confidential. Once it goes to an administrative law judge and/or court, it becomes public record.

Internal complaint to HR: HR is supposed to keep your complaint of discrimination, whistleblower retaliation or other legal issues confidential. That being said, they also have to investigate. So people who work with you will likely know you complained. Filing an internal complaint is not a public record (unless you work for government, and then sometimes it is). So your employer could retaliate against you by telling potential employers that you complained, but that would be illegal retaliation if you complained about something that is illegal like discrimination. However, if you complained about your boss being unprofessional, incompetent or a bully, your complaint is not legally protected against retaliation.

Lawsuit: If you file a lawsuit, it is public record. It will almost certainly turn up in a background check. However, the lawsuit I mentioned above may start a trend of Jane and John Doe filings to keep this from happening. For the most part, that may be effective. However, if a potential employer dug deeper into a litigation file, it would likely be able to uncover your name in deposition notices and other filings. An ordinary name search background check would be thwarted by a Doe filing. So if you're thinking about suing an employer or former employer, a Doe filing is something to think about.


Friday, May 19, 2017

9th Circuit Decision Proves Need For Laws Banning Prior Salary Inquiries

A few weeks ago I wrote that some states are passing laws banning prospective employers from asking applicants about their salary history. The reason lawmakers give for this law is that basing salary on an applicant's pay with another employer locks in discrimination. This practice particularly impacts women.

A recent case out of the normally very liberal 9th Circuit demonstrates the need for laws banning salary history inquiries. The Court found in Rizo v. Yovino that an employer may legally justify paying women less than men where it based pay solely upon 5% above prior salary. The Court said that, under the Equal Pay Act, prior salary could be a factor other than sex that justified a pay disparity. The appellate court overturned the district court's ruling in favor of the employee:
The district court determined that, under the Equal Pay Act, prior salary alone can never qualify as a factor other than sex, reasoning that “a pay structure based exclusively on prior wages is so inherently fraught with the risk . . . that it will perpetuate a discriminatory wage disparity between men and women that it cannot stand, even if motivated by a legitimate non-discriminatory business purpose.”
The appellate court analyzed the employer's justification for the pay disparity:
The County has offered four business reasons for using Standard Operation Procedure 1440, under which starting salaries are based primarily on prior salary: (1) the policy is objective, in the sense that no subjective opinions as to the new employee’s value enters into the starting-salary calculus; (2) the policy encourages candidates to leave their current jobs for jobs at the County, because they will always receive a 5% pay increase over their current salary; (3) the policy prevents favoritism and ensures consistency in application; and (4) the policy is a judicious use of taxpayer dollars. But, the district court did not evaluate whether these reasons effectuate a business policy or determine whether the County used prior salary “reasonably,” as required by Kouba.
The Court noted that other circuit courts had held, contrary to their ruling, that prior salary was not sufficient justification for gender pay disparities, citing Angove v. Williams-Sonoma, Inc., 70 F. App’x 500, 508 (10th Cir. 2003); Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995); Price v. Lockheed Space Operations Co., 856 F.2d 1503, 1506 (11th Cir. 1988); and Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1570–71 (11th Cir. 1988). So yay for my own 11th Circuit.

Here's what the Court directed the district court to do on remand:
On remand, the district court must evaluate the four business reasons offered by the County and determine whether the County used prior salary “reasonably in light of [its] stated purpose[s] as well as its other practices.” Kouba, 691 F.2d at 876–77. We emphasize that because these matters relate to the County’s affirmative defense rather than to the elements of the plaintiff’s claim, the County has the burden of persuasion. See Maxwell, 803 F.2d at 446. Thus, unlike in a typical case under Title VII involving the burden-shifting method of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the plaintiff does not have to present evidence that the County’s explanation for the pay differential is a pretext for intentional gender discrimination. Rather, it is up to the employer to persuade the trier of fact that its stated “factor other than sex” actually caused the salary differential, that the stated factor “effectuate[s] some business policy,” and that the employer used the factor “reasonably in light of [its] stated purpose as well as its other practices.” Kouba, 691 F.2d at 876–77. Of course, the plaintiff is free to introduce evidence of pretext (or any other matter that casts doubt on the employer’s affirmative defense) if it chooses to do so. Maxwell, 803 F.2d at 446.
This case was not a disparate impact case, so I wonder what would happen if the same set of facts were raised under the theory that a facially neutral practice of basing pay on prior salary alone has a disparate impact on women.

In the meantime, this case should give the legislators and lobbyists who are pushing laws to ban salary history inquiries some ammunition to prove that salary history inquiries are bad for women and are thus bad public policy.

Friday, May 12, 2017

Dear Business Lawyers: Stop Trying To Get Employees To Waive Their Unemployment Benefits

Things you didn't think you had to say but apparently do. In Florida it is still illegal to try to get an employee or former employee to waive their right to apply for unemployment. It's a crime. Yet I've seen a couple of draft releases in proposed severance agreements attempting to do exactly that. And I also recently got a demand email complaining that a client had signed a release and was therefore breaching by filing for unemployment.

Let's be clear. You can't ask an employee to release or waive their right to unemployment in my home state of Florida. Period.

Here's what the statute says if you don't believe me:
443.041 Waiver of rights; fees; privileged communications.—
(1) WAIVER OF RIGHTS VOID.—Any agreement by an individual to waive, release, or commute her or his rights to benefits or any other rights under this chapter is void. Any agreement by an individual in the employ of any person or concern to pay all or any portion of any employer’s contributions, reimbursements, interest, penalties, fines, or fees required under this chapter from the employer, is void. An employer may not directly or indirectly make or require or accept any deduction from wages to finance the employer’s contributions, reimbursements, interest, penalties, fines, or fees required from her or him, or require or accept any waiver of any right under this chapter by any individual in her or his employ. An employer, or an officer or agent of an employer, who violates this subsection commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
After a brief bout of research, it looks like lots of other states also prohibit this practice. I've found laws prohibiting such waivers in New York, Texas, Minnesota, Maryland, California, North Carolina, and Missouri. That's a pretty good sampling of pro-employer and pro-employee states, so I'm guessing your state may prohibit this as well.

For some reason I have to say this about every ten years or so. The management-side employment lawyers know better. It's the employers who handle business/corporate law who decide to dabble in employment law who need to be reminded.

Therefore, I am saying it. Now cut it out and stop torturing people who have lost their jobs.

Rant over.

Friday, May 5, 2017

If You Have A Preexisting Condition, Choose COBRA or ObamaCare Over Your Mortgage

It used to be that when people lost their jobs, there was only one way to keep insurance coverage, and that was COBRA. The only problem is that when you lose your job, you have to pick and choose what bills to pay and COBRA is crazy expensive. Most people had to go bare. If they had preexisting conditions, it was literally a matter of life and death because they would never get insurance again.

Then came the Affordable Care Act, which is the same as ObamaCare if you haven't already figured that out. The ACA allowed people who lost their jobs to get alternative insurance that was much cheaper than COBRA. Plus, it both banned insurance companies from denying coverage due to preexisting conditions and also from charging more to those with preexisting conditions. So, yes, insurance rates went up for those who were healthy, but it saved billions in government-subsidized healthcare. The reason being that anyone who was uninsured had to go to publicly funded hospitals for all their healthcare needs.

Since the election, I've been warning people who lose their jobs to make sure they elect either ACA or COBRA, and under no circumstances to lose coverage if they have a preexisting condition because I thought preexisting condition coverage would be lost when Trump and the Republicans started to gut the ACA.

I've been accused of being an alarmist, but that's exactly what the latest proposal would do. While it would still prohibit insurers from denying health insurance to those with preexisting conditions, it allows them to raise premiums. A recent study made these findings:
Based on our analysis, we estimate that individuals with even relatively mild pre-existing conditions would pay thousands of dollars above standard rates to obtain coverage. For example, because an individual with asthma costs an issuer 106 percent more than a healthy 40-year-old, she would face a premium surcharge of $4,340. The surcharge for diabetes would be $5,600 per year. Coverage could become prohibitively expensive for those in dire need of care: Insurers would charge about $17,320 more in premiums for pregnancy, $26,580 more for rheumatoid arthritis and other autoimmune disorders, and $142,650 more for patients with metastatic cancer.
Because there are few things that can bankrupt you as quickly as medical bills, if you lose your job and have to choose between paying your mortgage and paying for insurance, the wise decision might just be to pay for insurance. While your mortgage company may work with you to allow you time to catch up, losing your coverage if the Republicans manage to repeal preexisting condition coverage may literally kill you.

If you care about this, call your Congress member and Senator now and tell them to stop this folly before they kill a bunch of people.

Friday, April 28, 2017

Fox Proves It: Sexual Harassment Is Contagious

I've always said that sexual harassment is not about sex: it's about power. In that way it's just another form of bullying. And if you remember your playground bullies, if they got away with it once, they accelerated their behavior. Sexual harassers, like bullies, engage in more and more extreme behavior until someone stops them.

The other thing about playground bullies is that their behavior is contagious. Some weaker personality chimes in to get approval from the alpha bully. Then others join in the bullying. Well, it happens with sexual harassment too, and Fox just proved it.

We have all seen the headlines. First it was Roger Ailes, the alpha harasser, who got away with sexual harassment for years before he was ousted. His behavior set the tone for the entire corporation.

From there, the women at Fox were emboldened, and they spoke up against Bill O'Reilly. After millions in payouts, the network finally got rid of him too. But it took a long, long time, didn't it?

And now there's a new allegation, this time about Sean Hannity. I'm not surprised if it's true, because sexual harassment is truly contagious. If one gets away with it, then it spreads. If this really happened, then I bet others will come forward.

This is yet another reason for employers to take sexual harassment complaints seriously. If the victim is ignored or fired, if the harasser is allowed to continue, then pretty soon you have a full-blown Animal House at work. And does any shareholder really want that going on? Does that in any way help the work get done? No, of course not. It's a distraction. It destroys morale. And as the Fox multi-million payouts demonstrate, it ultimately destroys the bottom line.

Women were afraid to report the harassment at Fox, until the first woman finally stood up, and then others came forward. That's just what happens with those playground bullies: when the first kid stands up to them then others get the nerve to stand up too. Which means that reporting sexual harassment is also contagious.

When the company takes the sexual harassment complaint seriously and makes sure the harasser is stopped, then other victims won't be afraid to come forward.

So, HR folks, take those sexual harassment complaints seriously and stop those harassers the first time they harass. Or ultimately they'll grab you in the p***y and you shouldn't be surprised.

And victims of sexual harassment, try to come forward. You have to report it to HR and give them a chance to fix it according to the Supreme Court, and that's very, very hard. But if you don't report it, then the harasser will do it to other women, and the harassment will get worse. It may even spread. If you stand up to the harasser, then other women will be empowered to stand up for themselves.

Monday, April 24, 2017

States With Pro-Employee Laws: No Asking About Applicant Salary History

In a movement that started in Massachusetts, states and cities are starting to ban employers from asking applicants about their salary history. The reason behind the legislation is that basing pay on prior salary can lock in pay discrimination. The sponsor of the Philadelphia ordinance explained: “Simply put, when a woman is paid less at the beginning of her career she will continue to earn less throughout her career. By eliminating the question of salary history we will be one step closer to decreasing the wage gap.”

The Massachusetts law makes it illegal to:
[S]eek the salary history of any prospective employee from any current or former employer; provided, however, that a prospective employee may provide written authorization to a prospective employer to confirm prior wages, including benefits or other compensation or salary history only after any offer of employment with compensation has been made to the prospective employee.
New York is the most recent city to ban salary history inquiries. Puerto Rico also has a salary history ban. Similar proposed laws are pending in D.C., California, New Jersey, New York State and in Congress (that one won't pass, but it's a nice try).

This is a good move to try to end the pay gap that still exists between men and women. It could well help stop the cycle of pay disparity for women and minorities.

And really, what business is it of anybody what you make now? Employers should know what they plan to pay for a job and actually pay it. While nothing stops you from saying no to such inquiries now, unless you're a highly sought after recruit saying no may end the interview.

For multistate employers, this may have an impact on the way they conduct interviews and prepare applications now. For others, now is the time to start rethinking this outdated and unduly nosy practice.


Friday, March 31, 2017

Trump Says It's Okay For Federal Contractors To Break Employment Laws

Another week, another prediction sadly fulfilled. On December 2, I did a list of executive orders protecting employees of federal contractors that I predicted would be rescinded under Trump. A very important one just bit the dust.

The Fair Pay and Safe Workplaces Rule provided two important protections for employees that are now gone:

Blacklisting for employment/labor law violations: Anyone applying or bidding for a federal contract of $500,000 or more was required to disclose any employment or labor law violation. They had to 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 a list of labor and employment laws, plus they have to update their violation information every six months and, for some contracts, obtain the same violation information from their covered subcontractors. This meant that federal contractors needed to be very afraid of things like a "cause" finding from EEOC. Punishment for repeat offenders could be up to cancellation or denial of a contract.

I predicted that employers would fear no more because they knew the rule would be gone soon.

No mandatory arbitration: The same executive order also banned 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 applied to subcontractors providing services or supplies over $1 million.

Federal contractors may now resume requiring employees to arbitrate.

Sad.

Monday, March 27, 2017

New Bills In Florida That Will Impact #Employees If Passed

The Florida legislature is in session through May. They may or may not pass some legislation that will affect employees and employment law. Be afraid. Be very afraid. Here are some of the bills to watch:

SB 160 - Minimum WageRevising the formula for the adjusted state minimum wage, etc.  See HB 945. This is an attempt to slowly bring Florida's minimum wage up to a living wage by adjusting an extra $1 - $1.50 per year until 2021. Since Republicans hate the minimum wage to begin with, it won't pass. 

SCR 194:  The annual and inevitably failing attempt to ratify the Equal Rights Amendment. Sigh.

HB 319Discrimination in Labor and EmploymentCreates "Helen Gordon Davis Fair Pay Protection Act." This bill, which won't pass. would add gender identity to the categories of illegal discrimination, prohibit pay and other discrimination based on sex and gender identity,  and prohibit employers from punishing employees for discussing and comparing wages and benefits. 

HB 443Verification of Employment EligibilityRequires employers to use E-Verify system to verify employment eligibility; prohibits employer from knowingly or intentionally employing unauthorized alien. This bill really has more of an impact on employers, and criminalizes the hiring of illegal aliens. However, it will make it more difficult for anyone with an accent or foreign-sounding name to get a job if employers become skittish about possible jail time for a bad hiring decision. This one has a shot at getting passed as we continue anti-immigrant fever in this country, but I'm guessing the Chambers and business interests will freak out and oppose it. My prediction is it probably won't pass.

HB 623Prohibited DiscriminationProvides that sexual orientation & gender identity are impermissible grounds for discrimination, provides exception for constitutionally protected free exercise of religion.  Related bills are SB 666, HB 659, SB 742. Despite the fact that major corporations and business interests support this, and the fact that it will be good for Florida's tourism and economic interests, this has failed every time it has been attempted. It will fail again.

HB 1255Florida Commission on Human Relations. This bill would adjust quorum requirements for the Commission and would make clear that the statute of limitations for suing for discrimination is 4 years from the date of discrimination, which is the law now but is continually the subject of litigation. Mostly, it guts the discrimination provisions regarding private clubs. It could pass.

HB 7047: Would deregulate/change regulations regarding a huge list of professions, including labor organizations.

Guns in workplaces: There is a giant batch of pro-gun legislation pending that could well pass, and it will affect workplace safety and also employee rights to carry. These bills include the right to bring guns to colleges and universities, passenger terminals of airports, public meetings, basically anywhere, career centers,  athletic events of schools and colleges,  the Florida legislature (okay, this would serve them right). Then there's SB 140 and SB 646 that would make Florida an open carry state. If business organizations aren't freaking out and screaming bloody murder, they should be. Can you imagine what will happen if a bunch of Floridians are running around with guns in all these places? Mayhem will ensue. And then there's the one that is the voice in the wilderness that would increase penalties for carrying weapons into schools and school events. It won't pass. Neither will the one adding public theaters and performing arts centers to the list of places you can't carry weapons.

Medical marijuana: Of the many bills relating to marijuana use, not one would protect employees from being fired for using prescribed marijuana, even the low THC kind. For shame.

SB 1208: Would add intentional touching in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering such areas to the crime of sexual battery, which could give sexual harassment victims more ammunition. It's by a Democrat so it probably won't pass.

SB 1148: Unemployment compensation. Would provide for an alternate base period for those currently being screwed out of unemployment benefits for arbitrary calendar reasons, would punish employers who refuse to give wage/employment info (which happens all the time now and delays unemployment benefits by weeks or months) and would add to the reasons an employee can resign and still get benefits. There is no way this will pass. Florida has done everything it can to screw people out of their unemployment benefits and will continue to do so.

HB 575: Threats to kill or do bodily harm. This one will affect many employees. It makes it a felony to post on the Internet or in social media, as well as email, etc. any threat to kill or do bodily harm. This means anyone who posts, "I could just kill my boss for what happened today," or "I could just strangle my coworker," whether or not there was any intent to do the harm and whether or not it was just venting, could face felony charges. This bill could be crazy overbroad and could result in lots of employees ending up in handcuffs. Right now, the threat has to be made to the actual person. Now, if anyone else sees the threat you can be prosecuted.

HB 561: Providing for a veteran's preference tax credit, which may help veterans get employment.

HB 31: Would "ban the box" and prohibit employers from asking about arrests/convictions and from refusing to interview based on criminal arrests and convictions. They can still do background checks once a conditional offer of employment is made. It won't pass.

SB 126: Would loosen the state's anti-nepotism laws. Somebody has a relative who needs a job. Could it be somebody who also wants to turn the state into the wild west? Could be.

HB 11: Would make it way easier to decertify labor organizations/labor unions. It will probably pass.

The good news is there are no bathroom bills this year. Will the legislature do anything to help employees this year? Not likely. I'll let you know if they do.

Wednesday, March 22, 2017

Climate Change Denial To Be New Protected #Emplaw Category?

Yes, I've been absent for a bit. I was caught up in an arbitration (results unknown at this point) so had a good excuse. Anyhow, I saw this tidbit and had to share it. A Maine lawmaker has proposed a bill that would make an employee's opinions about climate change a legally protected category.

To his credit (or maybe he just didn't think it through), although the stated purpose of the bill is to protect climate change deniers, the protection goes both ways. If passed, the bill would also prevent conservative employers from firing employees who express a belief that climate change is real.

An Act To Protect Political Speech and Prevent Climate Change Policy Profiling” was filed to counter a racketeering lawsuit by several states' attorney generals against Exxon relating to misleading the public and investors about climate change. 

The bill summary says:
The bill specifically prohibits the attorney general from investigating, joining an investigation initiated by another state or the federal government or prosecuting any person based on that person’s protected political speech. It also prohibits the attorney general from using the attorney general’s prosecutorial power to favor or disfavor protected political speech.
The bill also prohibits the state from favoring or disfavoring any person based on the person’s climate change policy preferences with regard to grants, contracts or employment.
I wonder how the state's chambers of commerce and business lobbyists will react to adding yet another protected category to the state's anti-discrimination laws (since it only applies to the state and not private employers, they may not care). Will climate change beliefs end up as another legally-protected category? If so, what's next? Russian hacking denial? Sincerely held belief in every single thing Fox news says? Stay tuned.

Friday, February 24, 2017

Disabled Employees and Lawyers: Beware Legal Marijuana Laws

So I've been predicting that the Trump administration would crack down on legalized marijuana, and when I said that on NPR I was accused of being a fear-mongerer. Wednesday I spoke to a group of law students about legalized marijuana and how it affects employment law, and the first thing I said is that lawyers should beware representing marijuana dispensaries because a crackdown was coming from the feds.

Alarmist? Maybe not. Because yesterday the White House announced a crackdown on marijuana use. I'm rarely proven right this quickly, so thanks? Our new Attorney General has made it clear that he is very, very anti-marijuana. What does this mean for states with legalized marijuana and legalized medical marijuana?

The announcement seemed to indicate that the first crackdown would be in states with legalized marijuana for recreational use. That means you can expect the jackbooted thugs to start raiding marijuana dispensaries in those states, getting lists of customers, and then arresting those customers. I have been predicting that anyone involved in the marijuana industry will start being charged with conspiracy, and that includes lawyers.

Once they bust the recreational users, it's just a matter of time before they go after those medical marijuana cardholders. If you have a disability and are using prescribed marijuana to give you relief from your horrific symptoms, beware. Once they start busting recreational users, I suggest finding alternatives and not getting caught holding the bag (see how I did that?) with even prescribed marijuana.

As for lawyers advising the industry, you are not only risking your license but your freedom. I recommend caution all around.

Not only does the administration have an incentive to bust pot smokers to bolster the private prison industry (read: indentured servitude for big corporations), but getting busted can mean forfeiture of your property with very little right to due process, so when the administration bankrupts the country (yes, I said it, and you can bank on it the way we are headed) they will be desperate for funds to bolster the failing economy.

There are very few protections already for employees who use medical marijuana legally. Now there is even more reason to be cautious before filling that prescription.

Friday, February 10, 2017

What A Broad Religious Exemption To Discrimination Laws Will Mean

While the Trump Administration announced that it would keep in place President Obama's Executive Order protecting employees of federal contractors from LGBT discrimination, there have been reports of another proposed executive order that would provide a religious exemption from all discrimination laws.
The four-page draft order, a copy of which is currently circulating among federal staff and advocacy organizations, construes religious organizations so broadly that it covers “any organization, including closely held for-profit corporations,” and protects “religious freedom” in every walk of life: “when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, the public square, or interfacing with Federal, State or local governments.”

If signed this Executive Order could conceivably be used to argue exemptions to race and sex discrimination laws as well as LGBT discrimination. While I don't think the President (who is not king or dictator, yet) can change existing laws with the stroke of a pen, this could result in years of litigation on these issues.

There are certainly many (if not most) religions that consider women to be second-class citizens. Some religions believe women should be subordinate to men, should not work outside the home, and/or should cover themselves from head to toe. Will the Administration be so intent on allowing LGBT discrimination that they forget about women's rights?

Indeed, the Bible was used for years to argue in favor of race discrimination and slavery. Such a broad exemption could be used to justify race discrimination by certain religious groups.

On the other hand, it would be conceivable that someone (maybe John Oliver, Trevor Noah or Samantha Bee) could form a religion to counter all this nonsense. A religion that says it is sinful to discriminate against LGBT, Muslim and other oppressed communities; that it is sinful to participate in oppressing the poor; that it is sinful to participate in increasing wage disparities; that it is sinful to deny excellent education to the poor and middle class; that it is sinful to employ people who would participate in such activities. Some religions already hold similar beliefs.

What would be the effect of such a religion? State and federal employees who were members could use a religious justification to refuse to enforce or participate in enforcement of any laws or policies that are against their religious beliefs. Closely-held for-profit corporations could refuse to employ anyone who held homophobic views, voted for Trump or walk around with Ayn Rand books. I'm betting that those who want to use their religion to discriminate would be the first to howl at such practices.

What's good for the goose is good for the gander. A broad religious exemption to discrimination laws might not have the effect Mr. Trump and his cronies are looking for. Be careful what you wish for.

Monday, January 30, 2017

My 2017 Predictions: It Won't Be Pretty

We've now seen one week of the new Administration, and so we know Mr. Trump was not kidding about his extreme promises. This will not be a good year for employees. The only thing I'm sure of is that we really have no idea what will happen this year. But I'll do my best to predict the unpredictable:

Executive orders: Okay, this wasn't a hard one since it's already started. We'll see lots of executive orders curtailing employee rights, LGBT rights and women's rights. I've already made some predictions about what regulations Trump will scrub,  and the reversal of protections for employees of federal contractors.

Obamacare gone: I've written about what will happen with the end of Obamacare, and the resulting end of nursing breaks if Obamacare is repealed. This is already starting to happen.

Marijuana jailings: I've also written about what will happen if the Feds start to enforce marijuana laws. I stand by my predictions, despite being called a fear-mongerer.

LGBT rights curtailed: We've started to see this already. A bill to allow LGBT discrimination on religious grounds has been introduced and Trump promises to sign it. They are likely planning to overturn President Obama's order on LGBT discrimination regarding federal contractors. There will be attempts to overturn gay marriage altogether, and to at least treat it as a second class kind of marriage where clerks can refuse to perform ceremonies. We may see an attempt at a federal bathroom bill similar to the obnoxious North Carolina bill. We'll see states moving to curtail LGBT rights, but we'll also see some states moving to protect them. There will be a true red/blue dichotomy. Florida will be a state that remains unfriendly to the LGBT community, and our legislature will feel emboldened to trample on rights.

Muslim discrimination: Already, Trump has attempted to keep even permanent residents who happen to be Muslim from re-entering the country after traveling for funerals and education. This will affect employees who have to travel for work. Many Muslims will lose their jobs when they can no longer safely leave the country. The blatant acts of discrimination by the Administration will embolden racists who feel they have the right to discriminate against brown people. This will be a horrible, horrible year to be Muslim. Some states will try to step up protections for Muslim people. The blatant discrimination will also help recruiting efforts for terrorist organizations.

Sex discrimination: There will be active attempts to ban abortion rights for women. This will turn women into second-class citizens. It's only a matter of time, once abortion becomes illegal again, that sexist politicians will turn their eyes on other aspects of women's reproductive and health issues. Once women can't control their own bodies without political interference, they will be hampered in their careers. There is a whole scary element of the Trump regime that believes women shouldn't work, so don't expect any pro-female laws. We may see some attempts to reverse sexual harassment and other protections for women, but I don't think this will happen immediately. They will be too busy harassing gays and Muslims this year.

EEOC changes priorities: EEOC is already backing down on lawsuits involving transgender rights. They will stop pushing cases where they have asserted that Title VII protects against LGBT discrimination, so it will be up to employee-side employment attorneys to push the issue. Also gone will be arguments that banning hire of those with criminal records has a disparate impact on race/national origin.

No help with overtime: President Obama's attempt to expand overtime and update antique standards for overtime will be overturned.

Non-Christians: Religious discrimination laws protect all religions and sincerely held beliefs, but there will be a push to marginalize any protections for anyone who is not Christian. Those who believe the U.S. is a Christian nation will push to force us all into their narrow religious beliefs. It will become open season on non-Christians.

This is truly the most depressing set of predictions I've ever made. And I could go on. I think very few other than rich white males will have a good year, employment law-wise. I'm hoping the resistance will stay strong, but I still fear that, with the House, Senate, Presidency and soon the Supreme Court under the thumb of right-wing conservatives, we are in for a very bad year. I really most sincerely hope I am wrong.



Friday, January 20, 2017

Cassandra Redux? How I Did On My 2016 #Emplaw Predictions

Every year I have done predictions for what I expected to happen in employment law and I'm usually right. After 30 years of law practice, it turns out I know stuff, despite what my teenagers say. Here's what I predicted for 2016 and how it turned out:

Political firings: I predicted a rash of political firings for discussing politics at work, and of course this happened. But it was less about the actual politics and more about the undercurrents. This year, there were more blatant comments about women, gays, the disabled and other protected groups than I've seen in my 30 years of law practice, and much of that was because of the tone of the political campaigns.

LGBT discrimination: I predicted that some states and localities would pass laws against LGBT discrimination, but my home state of Florida would fail again. That's exactly what happened. What I didn't predict was the rash of anti-gay legislation that would arise. From bathroom bills to religious exemptions, some states tried everything they could to put the screws to the gay community this year.

Obama to the rescue: I predicted the President would continue to be active with his pen and squeeze in some more pro-employee executive orders before he left office and he did. The new President says he'll reverse them all on his first day.

Clear choice: I predicted that the candidates for President would make their positions on working people very clear. That was certainly true. I told you to vote very carefully. I said you could easily lose many workplace rights if you vote wrong. Well, you're about to see how bad it can get.

EEOC step up: I predicted that EEOC would step up its activities in one final burst before the new President got a chance to gut it, and they did. There were a whole bunch of new guidances issued on mental disabilities, harassment, wellness notices, national origin, federal sector discrimination, retaliation, and affirmative action for people with disabilities.

NLRB step up: I predicted that NLRB would also try to help working people as much as it can while it still could, and that employers would complain bitterly. Yep.

Do-nothing Congress: I predicted Congress would do zip to help working people. They did nothing.

Criminalization: I said we'd see more employees arrested and prosecuted for things like trade secrets violations, whereas employers who steal wages would walk. That happened.

Joint employer: I predicted that whether franchises and placement agencies are joint employers with parent companies and the companies employees are placed with would be a hot issue this year and that the Supremes wouldn't decide the issue. That indeed continued to be a hot topic, with DOL and NLRB taking a big lead on the issue.

Guns at work redux
: I predicted that employees and the NRA would push to allow employees with concealed weapons permits to carry into the workplace. We did see more of those guns-at-work parking lot laws, and Florida legislators are trying to repeal a law prohibiting guns in airports (doh!). We didn't see the push to take the guns from the parking lots to the workplace this year, but that push is coming.

So, I did pretty well, even though 2016 was a year nobody could have predicted. Next up are my predictions for 2017.  Today, I'll be busy helping protect working people while they still have rights and ignoring the festivities in D.C.

Friday, January 6, 2017

What #Employmentlaw Regulations Will Trump Scrub?

As the inauguration gets closer, the new Trump Administration is making lots of promises about what they intend to do. Apparently number one on the list is undoing as many of the Obama Administration's Regulations and Executive Orders as they can. I already talked about some Executive Orders that benefit employees of federal contractors that are at risk. So what else may disappear or change soon?

Here are some employment-related regulations to keep an eye on:


These are just some examples of the many, many executive branch regulations that could change soon. The truth is that nobody has any idea what the new administration will actually do. Both employers and employees are justifiably nervous about what may happen in the next four years. Stay tuned.