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, June 14, 2019

Can I Be Fired For Taking Vacation? Short Answer: Yes

I'm on vacation, and so are many Americans. You shouldn’t have to worry about your job while you’re on vacation. Or should you?

You’ve earned two weeks of vacation, and wow, did you work for it. You put in for your two weeks, got it approved, and planned your trip. You have non-refundable tickets to fly to your dream all-inclusive resort. A week before you leave, you mention that Bob will be covering for you while you’re gone. Your boss says, “Oh, you were serious about taking vacation?” You nod, meekly. You ask a coworker what she thinks he meant. You find out that the last five people who went on vacation were fired.

Should you be worried? The short answer is: yes. There is no U.S. law requiring an employer give you any paid or unpaid vacation. I hear stories all the time of people fired a few days or a week into a scheduled vacation, or the day they get back. Even worse, they’re fired the day before they’re scheduled to leave. They were counting on the vacation pay to cover the cost of the trip. Now they’re left in the lurch.

Vacations are good for you and good for employers. They keep morale higher, prevent employee burnout, reduce stress, and keep you healthier. The good news is that most employers won’t fire you for taking your vacation. Yet a recent survey found that one out of four of Americans are taking no vacation this summer.

The fear of being fired for taking vacation is justified. If you live anywhere but Montana, you’re probably an at-will employee. That means you can be fired for any reason or no reason at all. Do you have any rights? Yes, but not many.

Here are some circumstances where it would be illegal to fire you for taking a vacation:

Family and Medical Leave: If you have scheduled surgery, are pregnant with a due date, or have an immediate family member who has scheduled medical care, you might be protected. If you put in for FMLA leave, your employer must let you use your paid sick and vacation time first before they put you on unpaid leave. If you’re fired because you used your vacation for FMLA leave, you may be protected.

Contract: If your employment contract says you’re entitled to vacation, then firing you for taking it might be breach of contract.

Employee Welfare Plan: If the employer has an established vacation policy for all employees, then it might be an “employee welfare benefit plan” that is covered under ERISA. That means it might be illegal to retaliate against you for exercising your right to take your vacation benefit.

Union contract: If your union’s collective bargaining agreement provides for your vacation benefits, you might be able to grieve any termination that violates your union contract. If you don't have a union at work, look into forming one if you are concerned about your working conditions.

Discrimination: The company can’t discriminate based on race, age, sex, religion, color, national origin, disability, genetic information, or age in granting and denying vacations. Some states have other protected categories such as sexual orientation, marital status, and domestic violence victims. They can favor your boss’s vacation over yours though. If the boss’s vacation conflicts with yours, even if yours was preapproved, they can renege on the approval.

Other than these limited rights, you can absolutely be fired for taking your vacation or to prevent you from getting a paid vacation. Here’s some more information you need to know about your rights while taking vacation:

Wrongdoing discovered: If your employer discovers wrongdoing or even poor performance while you’re on vacation, even if you have a protected right to take it, they can fire you for the wrongdoing they discover. That means if you embezzled and they find out because someone covered for you while you were out, or if you didn’t do a key assignment before you left, then you might not have a job to come back to.

Layoff: Even if you have protected vacation rights, such as under a union or employment contract, if there is a genuine layoff at your company, they can probably include you in the layoff.

Last minute demand to cancel: Sometimes the boss will demand you cancel your plans at the last minute. Maybe an emergency comes up, or she just decides she can’t live without you. If you refuse and take your vacation anyhow, you can be fired for insubordination or job abandonment.

Use it or lose it: If your employer has a “use it or lose it” vacation policy, you probably have no right to be paid for your vacation when you’re fired. However, if your employer lets people accrue their benefits and get paid out when they leave, you are probably entitled to be paid your vacation time when you leave. It’s an earned benefit. Some states protect their citizens by barring use-it-or-lose-it vacation policies. Here are some states that look out for their voters:
  • California: Under Cal. Labor Code §227.3, all accrued vacation must be paid when employment ends. California also prohibits policies that make employees take vacation by a certain date or lose it. In one California case, an illegal policy cost the employer millions.
  • Illinois: Under 820 ILCS 115/5; 56 Ill. Adm. Code 300.520, employers have to pay out accrued vacation pay at the end of employment unless a collective bargaining agreement with a union provides otherwise. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. 56 Ill. Adm. Code 300.520(e).
  • Indiana: While employers can have a use-it-or-lose-it policy in Indiana, employers have to pay out accrued vacation if their vacation policy is silent on the issue. See Indiana Heart Associates, P.C. v. Bahamonde, 714 N.E.2d 309 (Ind. App. 1999); Die &Mold, Inc. v. Western, 448 N.E.2d 44 (Ind. App. 1983).
  • Louisiana: Vacation pay is earned wages, so policies requiring the forfeiture of earned vacation pay are not enforceable. Beard v. Summit Institute, 707 So.2d 1233 (La. 1998). However, they may implement use-it-or-lose-it policies saying employees must use by a certain date or lose the vacation.
  • Maryland: Like Indiana and Louisiana, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.
  • Massachusetts: Employers have to pay out accrued vacation pay at the end of employment. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. MA Atty. Gen. Advisory 99/1.
  • Michigan: Similar to Indiana, Louisiana and Maryland, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.
  • Montana: In Montana, an employer can't take away earned vacation pay or fail to pay it out for any reason. MT Dept. of Labor and Industry FAQ; See Langager v. Crazy Creek Products, Inc., 287 Mont. 445; 954 P.2d 1169 (Mt. Sup. Ct. 1998).
  • Nebraska: Nebraska law prohibits employers from failing to pay out earned vacation or from policies saying employees must use vacation by a certain date or lose it. See Neb. Rev. Stat. § 48-1229(4); Roseland v. Strategic Staff Management, Inc., 272 Neb. 434, 722 N.W.2d 499 (Neb. Sup. Ct. 2006); Neb. Dept. of Labor FAQ.
  • New York: If the policy is silent on the issue vacation must be paid out at the end of employment.
  • North Carolina: If the policy is silent on the issue, vacation must be paid out at the end of employment. N.C. Gen. Stat. § 95-25.12.
  • North Dakota: Employers can't require an employee to forfeit accrued or earned vacation leave upon separation from employment, regardless of the reason. ND Admin. Code § 46-02-07-02(12). However, they can implement policies saying vacation must be used by a certain date or be lost.
  • Ohio: While use-it-or-lose-it policies are allowed, vacation must be paid out at the end of employment if the policy is silent on the matter. See Fridrich v. Seuffert Construction Co., 2006 Ohio 1076 (OH App. 2006).
  • Oregon: Oregon is another state that allows such policies but requires employers to pay out vacation if the policy is silent on the issue.
  • Rhode Island: Employers must pay employees who have completed at least one year of service for any vacation pay accrued in accordance with company policy or contract on the next regular payday for the employee when they leave. RI Stat. § 28-14-4(b).
  • West Virginia: If the policy is silent on the matter, vacation has to be paid out at the end of employment. See Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (WV Sup. Ct. 1999). Otherwise, employers are allowed to implement such policies.
  • Wyoming: In Wyoming, an employer cannot require an employee to forfeit accrued or earned vacation on leaving. WY Dept. of Employment FAQs.
Should it be legal to fire you for taking your earned vacation? No. But it probably is. The United States is the only industrialized nation that doesn’t have a law requiring paid vacation. One in four Americans receives no paid vacation.

So take that trip to South America or your dream cruise. Enjoy! You may have more free time than you expected when you get back. Maybe it's time we join the rest of the civilized world and require some paid leave for workers. Something to think about when you're voting in 2020.

And now, back to my vacation, which I am definitely taking as much of as I can.

Friday, June 7, 2019

Can My Employer Make Me Speak English Only, Even On Breaks?

I'm always surprised how many employers try to impose English-only policies or ban speaking a particular language when there are so few circumstances where such a policy would be legal. Most English-only policies at work violate the laws against national origin discrimination. Yet some companies like Albertsons and Forever 21 have ended up in hot water for banning the use of any language other than English. In the case of Albertsons, EEOC sued them for limiting language to English even during breaks. 

Banning the use of another language on breaks is almost certainly a blatant violation of the law.

Here's what the United States Equal Employment Opportunity Commission (EEOC) says about English-only policies:
The EEOC has stated that rules requiring employees to speak only English in the workplace violate the law unless the employer can show that they are justified by business necessity.
  • A rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, will rarely be justified.
  • An English-only rule should be limited to the circumstances in which it is needed for the employer to operate safely or efficiently.
  • Circumstances in which an English-only rule may be justified include: communications with customers or coworkers who only speak English; emergencies or other situations in which workers must speak a common language to promote safety; cooperative work assignments in which the English-only rule is needed to promote efficiency.
  • Even if there is a need for an English-only rule, an employer may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of violating it.
Some examples of how this would work would be having a rule that, in case of a workplace emergency, English only will be spoken so all employees can understand; a rule that employees may not use a non-English language to make derogatory statements about coworkers or in order to exclude coworkers; or a rule that no foreign language will be spoken in the presence of English-only speaking customers.

If your boss wants to ban a foreign language at work for none of the reasons that are allowed under discrimination laws, they may be breaking the law. It could well be considered national origin discrimination.

If your boss has an English-only policy that is not justified by business necessity, I suggest contacting HR to report this national origin discrimination. Report it in writing so you have proof of what you reported. Call it "Formal Complaint Of National Origin Discrimination," and explain the new prohibition against speaking another language. If they won't correct the situation or if they retaliate, you should either file a Charge of Discrimination with EEOC or contact an employment lawyer in your state to discuss your rights.

Friday, May 24, 2019

Is It Time To Terminate At-Will Employment Laws?

Montana remains the only state in the nation that does not have at-will employment. At-will means you can be fired for any reason or no reason at all. Boss in a bad mood? That's a firing? Doesn't like your shirt? You're outta there.  Sure, there are exceptions like discrimination and whistleblower laws, but otherwise you're at the mercy of your boss.

So why haven't American workers risen up and said it's time to terminate at-will employment?

Well, maybe they're finally starting to, thanks to SEIU. In February, New York City saw a proposed just-cause bill introduced to protect fast-food workers at the behest of SEIU. Philadelphia passed a just-cause ordinance to protect parking industry workers last week, also at the urging of SEIU.

Montana, unlike every other state, requires employers to have just cause before they fire workers. And isn't that fair? Your family's ability to buy food and pay for shelter depends on your job. Most Americans are $400 of unexpected expenses or lost wages away from financial meltdown. Montana has had this law since 1987, and businesses are still there, the economy still functions and the state hasn't exploded, despite dire warnings from naysayers to the contrary.

Under Montana's Wrongful Discharge from Employment Act, MCA 39-2-901:
(1) A discharge is wrongful only if:
(a) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy;
(b) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or
(c) the employer violated the express provisions of its own written personnel policy.
(2) (a) During a probationary period of employment, the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason.
(b) If an employer does not establish a specific probationary period or provide that there is no probationary period prior to or at the time of hire, there is a probationary period of 6 months from the date of hire.
Pretty reasonable, huh? If New York and Philadelphia get the ball rolling, maybe other cities and states will follow. American workers deserve to have some stability and a regular income as long as they do their jobs.

Let's finally give notice that we're going to terminate at-will employment laws.

Friday, May 17, 2019

Is Your Offer Letter A Contract? Of Course It Is

I see offer letters that make a specific job offer and then say, by the way, this isn't a contract. Guess what? Offer plus acceptance equals contract. I don't care what that disclaimer says, it's still a contract.

Now, what the contract means is another thing. It may say you're at-will, which means they can fire you for any reason or no reason at all. Some states have exceptions to the at-will doctrine. In all states, at-will still doesn't affect your rights under discrimination and whistleblower laws.

Your offer letter probably has your starting position and salary listed. That means the employer is bound by this once you accept. If you're at-will, they can change it, but luring you in with a promise of a management position and high pay and then making you a minimum wage janitor is not only a breach of contract, but is likely fraud.

The offer letter probably also lists benefits and other terms. You are bound by the terms, as is your employer.

Of course, if you sign a more detailed agreement when you start, then the offer letter may be no longer in effect. Most contracts say they supersede all prior contracts. Be careful to read what you sign, especially that giant pile of papers they give you when you start. Don't sign something you can't live with.

If it turns out that the employer had no intention of living up to its deal when it made the offer, such as offering a nonexistent job or benefits, then you could have fraud claims along with your breach of contract claims.

So make sure to keep a copy of that job offer. If it's an email, print it and keep it. Keep anything you sign. It may be a contract, and it might come in handy later. It might also contain post-employment obligations you have to comply with such as a noncompete agreement.

If there's something you don't understand in the offer, make sure you get clarification before you accept. Offer plus acceptance equals contract. If the company is bound, so are you. Pay attention to what you are agreeing. If you don't understand it, get legal advice from an employee-side employment lawyer before you accept.

Friday, April 26, 2019

It's Illegal For Employers To Demand You Buy From Them, Or To Not Buy From A Competitor

For some reason, lately I'm running into employers that are firing employees because they are doing business with a competitor or a merchant they don't like. In Florida, and I'm guessing in some other states, this is flatly illegal.

An employer in Florida cannot demand that an employee buy from them or deal with them. Nor can an employer demand an employee not do business with any other company.

Fla. Stat. Sec. 448.03 provides: 
Threat of discharge to compel employee to trade with any particular firm or person; penalty.—Any person or persons, firm, joint stock company, association or corporation organized, chartered or incorporated by and under the laws of this state, either as owner or lessee, having persons in their service as employees, who shall discharge any employee or threaten to discharge any employee in their service for trading or dealing, or for not trading or dealing as a customer or patron with any particular merchant or other person or class of persons in any business calling, or shall notify any employee either by general or special notice, directly or indirectly, secretly or openly given, not to trade or deal as a customer or patron with any particular merchant or person or class of persons in any business or calling, under penalty of being discharged from the service of such person, firm, joint stock company, corporation or association shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
The law provides criminal penalties for officers and agents who violate:
448.04 Penalty for officer or agent violating s. 448.03.—Any person acting as an officer or agent of any firm, joint stock company, association or corporation of the kind and character as described in s. 448.03 or for any one of them, who makes or executes any notice, order or threat of the kind therein mentioned and forbidden, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
In 33 years of law practice, I'd never seen this as an issue before. Now I've seen it twice in a few weeks. So this is my reminder that violating this law is a crime in Florida. Please cut it out.

Friday, April 12, 2019

“BE HEARD in the Workplace” Act Attempts To Fix Sexual Harassment/Discrimination Laws

Don't get too excited. It will probably pass in the House, fail in the Senate, and be vetoed even if it does pass. But still, the “BE HEARD in the Workplace” Act (short for “Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act”) just introduced would be a major step in the right direction on sexual harassment law.

The bill would fix some major issues with existing sexual harassment laws that I've been complaining about for years:

Intern sexual harassment would be illegal: Right now, there is not a single federal law making sexual harassment of unpaid interns illegal. They aren't employees, so Title VII doesn't protect them. New York City, along with Washington, D.C., Delaware, and Oregon, have laws against sexually harassing unpaid interns. Otherwise, interns are currently sitting ducks in the workplace. The law also extends protections to  independent contractors, interns, fellows, volunteers, and trainees, regardless of remuneration or academic credit, and employees of smaller companies (right now it's 15 or more employees, so small employers get a free pass unless there's a state or local law saying otherwise).

Protection for LGBTQ employees: This law would add gender identity and sexual orientation to Title VII protections, clearing up any doubts about whether Title VII currently protects these employees (which I think it already does based on Obergefell).

Damages fixed: While age discrimination cases are currently subject to different damages and all damages are capped, this would eliminate damage caps and eliminate the ageist bias in the current law.

Fixes sexual harassment standard: The law would eliminate the ridiculously difficult-to-prove "severe or pervasive" standard (which management-side lawyers and some courts say is severe AND pervasive), clarify that sexual harassment is a form of workplace harassment, define workplace harassment as a practice that unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment, and identify factors to be used to determine whether a practice constitutes workplace harassment, but also clarify that no single factor alone can determine whether a practice constitutes workplace harassment.

Fixes standard of proof: The law clarifies that employees must only prove that discrimination or retaliation was a motiving factor under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Nondiscrimination Act (right now courts have said that age must be the sole factor in age discrimination cases, and for all it must be both a substantial and a motivating factor).

Statute of limitations: Changes the statute from 180/300 days (depending on the state, which is silly) to file with EEOC to 4 years.

No mandatory arbitration: The law prohibits pre-dispute mandatory arbitration agreements, and creates guardrails for post-dispute arbitration agreements.

Contractor discrimination prohibited: The law reinstates the Obama ExecutiveOrder reversed by Trump that ensures federal contractor compliance with workers’ rights laws, including maintaining workplaces free from harassment and discrimination. 

These are just a few of the key provisions. It's basically my wish list for fixing employment law, so thanks to the bill's sponsors Senator Patty Murray, Congresswoman Katherine Clark, and Congresswoman Ayanna Pressley.

Now, if only it had a chance in he** . . .


Friday, April 5, 2019

Did Your Employer Misrepresent Your Job Or Withhold Vital Information? That May Be Fraud

It’s not unusual that people are duped into giving notice at their job, only to have the offer pulled or find out the job is nonexistent. Some folks get lured into a job with promises of higher pay, better title, specific hours or location, and it turns out that the representations made to lure them in weren’t true. If this happens, you might have a case for fraud.

There are two types of fraud that Florida courts recognize in these situations. The first is a false statement made, knowing it is false, intending that you rely on it. A good example is what happened in Gandy v. Trans World Computer Tech, 787 So. 2d 116 (Fla. 2d DCA 2001). There, an employee alleged that he was induced to terminate his lucrative business as a freelance consultant with the promise of long-term employment as a manager. The employee alleged that, when the offer was made, the company had no intention of keeping him as a long-term employee but rather intended to force him to quit after a division was created. These allegations withstood a motion to dismiss.

So if you leave your job based on an offer that you'll be the manager, only to find out you're the janitor or secretary, said you'd be paid $100K/year and then paid much less, or if you find out you were only hired to be a temp to fill in for someone out on disability or maternity leave, you might have a fraud case. You may also have a breach of contract case, but that's another post for another day.

The other type of fraud is fraudulent concealment, basically, failure to disclose information that the employer has that would have made you decline the offer. A good example is what happened in Telesphere International, Inc. v. Scollin, 489 So. 2d 1152 (Fla. 3rd DCA 1986), where the employer, through a principal, had fraudulently induced an employee to join the company by deliberately failing to inform him that the system he was hired to market would fail and he would be discharged. The appellate court found that the plaintiff had pled the elements of actionable fraudulent concealment: the defendant deliberately and in order to deceive withheld material facts from plaintiff, when there was a duty to disclose, where the party making the representation had superior knowledge in the matter or acted in a confidential or fiduciary capacity, when plaintiff relied on the lack of disclosure to his detriment.

These are just some examples of what would be fraud. I cited Florida cases, but the claims are likely similar in other states as well. So if your employer misrepresented the job or the pay, or withheld vital information, you might have a remedy.