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.

Thursday, January 26, 2023

How Did I Do On 2022 Predictions? Call Me Cassandra

I made some predictions last year about what to expect in 2022. How did I do? Pretty darned well. Here is the breakdown.

1. More pro-employee NLRB: I predicted we'd see NLRB cracking down on employer retaliation and union busting efforts, and we'd also be back to seeing more pro-employee decisions on non-union "concerted activity" retaliation. This year they expanded the remedies that can be awarded for unfair labor practices, reinstated the possibility of micro-units, required employers to give access to union protesters, and are undoing the Trump-era anti-employee joint employer rule to make it easier for employees to bring claims.

2. EEOC will re-energize: I predicted they'd start to bounce back from the severe cuts under the past administration, and they have. They're catching up on backlog and hiring more mediators. I also predicted that they would focus on issues like sexual orientation that got pushed aside under the last administration, and they have. However some conservative courts vacated a guidance on this topic so the fight will continue to go on.

3. Supremes go anti-employee: I predicted that, while the agencies will be more pro-employee, the courts are going to take a sharp anti-employee turn. I said we should look for really pro-management decisions on the federal level. Yeah. That happened. Sigh.

4. Paralysis on noncompetes: I predicted that, even though President Biden issued an executive order asking the federal agencies to focus on noncompetes, there would be little the agencies can do without legislation. I predicted that Congress won't do anything. It didn't. I predicted that neither will the Florida legislature. It certainly didn't. However, the FTC just announced it plans to ban noncompetes. How will that work? I suspect not well, and there will be a huge fight, but we'll see.

5. Sexual harassment crackdown: I predicted that, with President Biden's order criminalizing sexual harassment in the military, the issue will get more attention. I predicted we would see some more crackdown on sexual harassers. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was signed in March, and that's a good step in the right direction.

6. COVID, COVID, COVID: I predicted the virus wouldcontinue to be an issue. Yeah. SMH. I predicted that OSHA would continue to try to get employers to maintain safe workplaces. The Supremes and the right wing will continue to fight. The Supremes blocked OSHA’s national Emergency Temporary Standard which required employers with at least 100 employees implement mandatory COVID vaccination for employees or opt for a weekly testing alternative. I predicted Florida would continue to be the Wild West. And it did. It just empaneled a grand jury to investigate vaccine mandates. Sigh.

7. More unions: I predicted that, as NLRB becomes more employee-friendly, we'd see more unionization attempts. I predicted that Amazon would have a union in 2022, and I'm proud to day my daughter was part of that successful effort. I predicted that, once Amazon had a union, employees of other workplaces previously thought impossible would begin efforts to unionize. They did. I also precicted that union busters would make a fortune in 2022 as employers try to fight back. They almost certainly did.

8. Disability discrimination: I predicted that, now that employees realize that it's easy to work remotely, and now that employers want employees back in the office, we'd see more disability discrimination cases. I predicted that employees who sought remote work as a reasonable accommodation would face resistance, but employers would lose the argument that granting the accommodation is a hardship. There have been quite a few cases this year, and more are in the pipeline.

9. Zoom: I predicted that Zoom would remain in many courtrooms, depositions and mediations. So far that has been the case. 

10. Anti-employee laws: I predicted some extreme anti-employee laws in red states attacking LGBT folks, abortion, marijuana, protests, and free speech. And, of course this has happened. I did not predict that Roe would be overturned last year, but it is something I certainly have been warning about for years as a possibility. The red states have gone nuts. Florida in particular. It will get worse before it gets better. 

Wednesday, November 30, 2022

Quiet Quitting: New Anti-Employee Term For Wanting To Have A Life

 There's a new term getting flung around by management types: quiet quitting. It's when employees actually want to do their job as described for the hours they were told the job would take (and for which they are being paid). Apparently, terrible bosses who have failed to hire enough staff and failed to accurately describe jobs want to vilify employees for wanting to have a life.

You heard about Elon Musk demanding that his employees commit to being "hardcore" (meaning willing to work 24/7) or leave.

And I've seen folks on social media bragging that they and their staff work until midnight. Like that's a good thing.

I remember working briefly for a large law firm. Associates would brag about sleeping there, blowing off family birthdays and funerals, and never taking vacations. And I would think to myself, what's the point? What's the point of making big bucks if you don't actually use the bucks to enjoy your life?

Gen Z gets it. They don't want to have jobs that are their whole life. They understand that having a job is for the purpose of providing the necessities you require to live and, if you're lucky, even the luxuries you want in order to enjoy your life. 

Take away the evenings and weekends, the holidays, the time with family, the vacations, and you have nothing. Because that employer that wants you to be loyal 24/7 has no loyalty to you. You likely can be fired at will, for any reason or no reason at all, unless you live in Montana or have a contract saying otherwise. It used to be that companies were loyal to their employees, but those days passed in the 70s. Now employees are treated like disposable cannon fodder.

Don't give up your actual life for corporate life. What's the point of making money if you can't enjoy it?

The U.S. needs to stop this crazy nonsense. Look at France. It has laws that protect employees from being treated like this. It's illegal to eat lunch at your desk, because it's good for your health to take a real lunch break and get out of the office. They also have a right-to-disconnect law, giving employees the right to stop answering emails and texts after hours. Overtime must be paid for work over 35 hours, and there is a weekly maximum number of hours set at 44 per week, and employees must have at least 11 consecutive hours of daily rest, and minimum rest of 35 consecutive hours at least once per week.

Employers need to hire enough employees to do the jobs needed during regular working hours instead of treating employees like indentured servants. If your employer wants you to work 24/7 and you aren't a supervisor, it's time to think about forming a union. If you are a supervisor and can't unionize, it's time to look for a workplace that understands its employees are entitled to have a life.

If you think we should be more like France and less like Elon, talk to your legislators about passing some pro-employee laws.

Friday, October 14, 2022

Try Guys: Who The Heck They Are and Why They Were Right

 Lots of folks (like me) saw the Saturday Night Live sketch about the Try Guys and said, "Huh?" I had no idea they were a thing. I assumed that they were made up. I was wrong. So I did some research. Turns out I wasn't the only one going WTH

I'll start out with who they are. They're YouTube sensations who try things. Yep. They try stuff and post videos of them trying the stuff. Women's underwear, jousting, cooking. Miscellaneous stuff. That's it. Apparently they make money doing it. About $6 million a year. Which makes me question all my life decisions.

Now the sketch. SNL made fun of the Try Guys for firing the one known as the "wife guy". He is so known as the married persona that he has published a cookbook with his wife, and did an Architectural Digest home tour with said spouse. He was caught making out with a woman who works on a Try Guys spinoff called Food Babies

SNL made fun of the firing, but I think, based on what I've read on this, that the Try Guys were probably right in firing him, looking at the employment law issues involved.

Sexual harassment: Since Food Babies is a spinoff, I'm guessing the original four Try Guys had some supervisory authority and decisionmaking power over the Food Babies. But it was consensual! some will cry. But is it really? If someone has supervisory authority, there's an imbalance of power and there's always an issue of pressure. Think Bill Clinton and Monica Lewinsky. Think about The Morning Show, which dealt with this kind of pressure pretty well in the first year's plotline. If it crossed the line (and I obviously don't know for sure whether or not it did), and if they investigated and determined that there was some wrongdoing, they are now on notice of his propensity to enter into such relationships with subordinates. They could be liable in the future for punitive damages if they do nothing and he does it again.

Damage to employer: I bet he has an employment contract. And it's not unusual for entertainers to have a morals clause saying they can be fired if they do something to damage the show or the brand, they can be fired. And since his brand was "wife guy" and he has potentially damaged the $6 million click-dependent show, they likely had the right to fire him.

So, yeah. He kissed a girl and it seems like that shouldn't get you fired. But sometimes, it's exactly what could and should get you fired.

Could he have some defenses? Sure. It depends on how his contract is written. But SNL got this wrong. It was not a laughing matter.

Thursday, September 29, 2022

Ian Alert: You Don't Have To Work In Dangerous Post-Hurricane Conditions

After a storm, I usually get lots of calls and emails about employers making employees work in conditions they deem unsafe so I thought I'd repost this for those affected by Ian. In general, you don't have to work in unsafe conditions. Here's what OSHA says about workplace safety:

You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.
OSHA also has a flyer about safety during disaster cleanup here. Some basic safety rules:
  • Keep an adequate amount of clean water for drinking.
  • Make sure workers are trained to do any complex or hazardous tasks.
  • Provide the proper equipment such as gloves, respirators, boots, lifting equipment and eye protection.
A host of other specific fact sheets are here. Some particularly useful ones for hurricanes are:
Bottom line for employers is: don't be stupid. Don't have employees in business attire climbing ladders and removing debris. Make sure employees are properly dressed. Don't cheap out and try to use your clerical employees to move downed trees or work around downed power lines. The lawsuit you will face when someone is seriously injured or killed will cost you way more than hiring the correct folks for the job.

The worker's page for reporting problems and with more resources is here.

By the way, if your "exempt" employees are doing debris removal or other scut work, they probably aren't exempt from overtime for that work. But that's another issue for another day.

Wednesday, September 28, 2022

Ian Alert: If My Office Is Closed Due to a Hurricane, Am I Entitled To Be Paid?

It's that most awful time of the year, that is, time to re-run this popular and necessary column. I hope you make out okay in Hurricane Ian and suffer no damage. However, you may be wondering if you're getting paid.

Whether you’re entitled to be paid when the office is closed depends on whether you are “exempt” salaried or not. Just being salaried doesn’t necessarily mean you aren’t entitled to overtime. It’s possible to be salaried and still non-exempt from the requirements of the Fair Labor Standards Act. Many employers misclassify employees as exempt to avoid paying overtime. If you work more than forty hours per week, it’s better to be non-exempt. But in the case of weather and emergency closings, it’s probably better to be exempt.

Exempt employees: If you’re exempt and you worked any portion of the work week, you have to be paid your entire salary, whether or not the office is closed for a natural disaster such as hurricane, snow, tornado, or flood. Further, Department of Labor regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” This would include natural disasters, so if you are able to work after a storm then you must be paid even if you didn’t work any portion of the week. If you can’t get there on time or have to leave early due to the flooding but the office is open, they can’t deduct for any partial days you worked.

Vacation time and PTO: Your employer can deduct from your vacation time or PTO for the time taken. However, if you have no accrued vacation or PTO time available, they still can’t deduct from your pay if you’re exempt.

Non-exempt employees: If you are non-exempt, then your employer doesn’t have to pay for the time the office is closed. However, if your company takes deductions and you’re a non-exempt salaried employee it may affect the way overtime is calculated.

Who Is Exempt?: You’re not exempt unless you fall into very specific categories, such as executives, administrative employees, or learned professionals. Plus, your job duties must fall within those categories, not just your title. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This is one of those rare times when it's better to be exempt, so it's the one time you can be glad that President Obama's overtime expansion was gutted.

Pay For Reporting To Work: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. Florida has no such requirement (so maybe it’s a good time to start complaining to your legislators). If it veers nortn, South Carolina has some protections for state employees but none that I've found for private sector employees.  North Carolina does have a law regarding employer adverse weather policies (they aren't required to have them though):
If an employer does establish an adverse weather condition policy, then pursuant to N.C.G.S. §95-25.13(2), the employer must: "Make available to its employees, in writing or through a posted notice maintained in a place accessible to its employees, employment practices and policies with regard to promised wages." The employer must comply with its own adverse weather policy until such time as the employer changes its policy in writing, notifies its employees of such changes prior to the effective date, and does not take away retroactively any benefits already earned, pursuant to N.C.G.S. §95-25.13(3).
Disaster Unemployment Benefits: If your state is declared a disaster, you may qualify for disaster unemployment assistance. If your state gets hit, here's where to start searching to see if you can get disaster unemployment assistance. It may take a couple days to update, so keep checking. I checked before posting and the Ian-affected areas weren't there yet.

If you’re hit with a big storm, get in touch with your supervisor or manager as soon as possible to find out whether or not you’re expected to be at work. If you can’t get in touch with anyone, then only go in if it’s safe for you to do so.

Thursday, August 25, 2022

Judge Blocks Private Employer Portions of Florida's Idiotic Stop WOKE Act

 I wrote a few weeks ago about the truly idiotic Stop WOKE Act that was passed in, you guessed it, Florida. Well, a federal judge just issued an injunction blocking its enforcement against private employers. The federal judge from the Northern District of Florida was duly irked:

In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. See Stranger Things (Netflix 2022). Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely. . . . Now, like the heroine in Stranger Things, this Court is once again asked to pull Florida back from the upside down.

The law, among other things, prevented private employers from certain diversity and anti-discrimination training. 

The Court gives a detailed example, and the judge's frustration is palpable:

In the end, Defendants suggest that there is nothing to see here. They say the IFA does nothing more than ban race discrimination in employment. But to compare the diversity trainings Plaintiffs wish to hold to true hostile work environments rings hollow. Worse still, “it trivializes the freedom protected” by Title VII and the FCRA “to suggest that” the two are the same. FAIR, 547 U.S. at 62.

Just imagine two scenarios. In the first scenario, a Black employee complains about a mandatory safety training scheduled on Juneteenth. Then, at a mandatory training the day before Juneteenth, “to the surprise of the employees in attendance, a white woman in a black gorilla suit enter[s] the meeting.” Henry v. CorpCar Servs. Hous., Ltd., 625 F. App’x 607, 608 (5th Cir. 2015).* As one of the managers blocks the only exit, the woman does “Tarzan yells and repeatedly refer[s] in a suggestive manner to ‘big black lips,’ ‘big black butt,’ and bananas.” Id. As the woman dances suggestively on one of the Black employees who had complained, another manager leans in and says: “Here’s your Juneteenth.” Id. In the second scenario, a company directs a White employee to attend a mandatory training in which employees watch “a video about violence committed against Black people in the United States over the centuries.” ECF No. 18-3 at 4. After the video, the presenter defines “Black rage”—“resistance towards oppressive people, practices, structures, and systems”—and “White Humility”—“a reflective practice that helps white people develop [the]capacity to interrupt white supremacy”—and asks Black and White participants to discuss them. Id. at 4, 12, 14. 

These two scenarios, under Defendants’theory, are indistinguishable. Indeed, Defendants say, to hold that the state may not ban the latter scenario is to hold that it may not ban the former. ECF No. 49 at 27 (arguing that a ruling for Plaintiffs would doom “a vast range of routine employment discrimination claims”). “If the law supposes that, the law is an ass, an idiot.” Charles Dickens, Oliver Twist 463 (3d ed. The New American Library 1961). But the law is neither an ass nor an idiot. It can tell the difference. Telling your employees that concepts such as “normal” or “professional” are imbued with historically based racial biases is not—and it pains this Court to have to say this—the same as trapping Black employees in a room while a woman in a gorilla suit puts on a retaliatory, racially inflammatory performance the day before a holiday celebrating the end of slavery. Rather, it is speech protected by the First Amendment. (emphasis added)

Things you didn't think you had to say when you became a federal judge, but apparently did.

The state is, of course, appealing. And because the injunction applies only to private employers, state employees are being terrorized by this ridiculous law, especially since schools and colleges are resuming.

I'm sure this isn't the last we'll hear on this law. As I wrote before, the law is badly written and I believe it actually means the opposite of what the legislature intended. SMH. 

* The fact that the judge doesn't have to make this bizarre scenario up explains why I have had a busy law practice for 36 years.

Thursday, August 18, 2022

Yes, It's Illegal To Retaliate If HR Managers Or Management Oppose Discrimination

Management-side lawyers are always trying to come up with new ways to make discrimination and retaliation legal. So it's no surprise that they argued in a recent case that there is a "management exception" to retaliation. The theory was that, if an HR manager or other management opposes discrimination as part of their regular job duties, they aren't covered by anti-retaliation laws.

The 11th Circuit has clearly rejected this argument:

The manager exception would carve out of Title VII protection the actions of management employees who have in the course of their normal job performance opposed an unlawful employment action of an employer. That carveout does not fit within the ordinary meaning of the word "opposed," and it is contrary to how Title VII uses the word. For one thing, the statute does not put any qualification on the word "opposed." It does not say an employee has engaged in protected activity unless her opposition came as part of her duties in the normal course of her employment.

Because it's not explicit in the text, to limit the plain meaning of "opposed," the manager exception would have to be implicit in how a person speaking "in ordinary discourse . . . would naturally use the word" opposed. Crawford, 555 U.S. at 277. But the limitations imposed on the word "opposed" by the manager exception would be neither "ordinary" nor "natural" to someone using that word. A person speaking "in ordinary discourse" would think an HR manager has opposed her employer's unlawful employment practices even if it's part of her job to do so. Opposition is opposition, whether the opposer is drawing a manager's salary or not.

It is too big a stretch to think that Congress silently and implicitly wrote into the opposition clause a significant exclusion of an entire category of employees, HR managers. We "assume that Congress does not generally hide elephants in mouseholes." CSX Transp., Inc. v. Ala. Dep't of Rev., 888 F.3d 1163, 1176 (11th Cir. 2018) (quotation marks omitted). That assumption is especially true here where the elephant would have to trample the ordinary and plain meaning of the words Congress did choose.

Whew! Thank goodness. Another attempt to make retaliation legal is rejected. If you're an HR person or other management employee who has opposed discrimination, it's illegal for your employer to retaliate against you. If you think illegal retaliation happened to you, contact an employee-side employment lawyer in your state to discuss your rights.