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, February 15, 2019

How To Tell If You Were Targeted For Layoff Due To Age

Layoffs seem to come in waves, and I'm seeing more of them right after the holidays, and there have been some big layoff announcements. If another recession kicks in, we'll see even more. Older employees, along with the disabled and pregnant employees, are the most targeted employees in layoffs. There seems to be an assumption that the "old guys" will be retiring soon anyhow so it doesn't matter. It does. Targeting older employees is illegal.

How do you figure out whether you were selected due to your age? Here are some factors to consider:
  • Comments: If your boss makes comments about age, that's direct evidence of age discrimination. Referring to older employees as, "geezer," "old man," or "pops," may indicate age discrimination. It can be more subtle. Saying the company wants a "young image," asking questions about your energy level or saying you may not be able to keep up with the new changes can all be evidence of age discrimination.
  • Different treatment: If you are selected as one of the employees to be laid off but younger, less qualified employees are kept on, then that is also evidence of age discrimination. Let's say the position requires a certification. You have it but the younger employee is working to get it. You're more qualified. Seniority can also be a measure of your qualifications. If you've been in the position for 20 years with all good reviews and the younger employee has only held the job for a year, that's a good indication that age discrimination is occurring.
  • Different options: If you are told you have to take the severance, where younger employees are given the option of stepping down to a lower paying position, then that could also be age discrimination.
  • Disparate discipline: Since the company is looking at disciplinary history, if you are suddenly targeted for discipline for picky things that younger employees also do and aren't disciplined for, then that is another sign that you are being targeted due to age.
Sometimes, you're given the option of taking a demotion rather than a layoff. If others are offered this option but the older employees aren't, that could be age discrimination in itself. On the issue of stepping down versus taking the severance package, that's a decision you need to weigh carefully. If your retirement benefit (assuming you work for the rare company that still has one) is measured by your last year or several years' pay, then you may want to go for the severance package if offered. On the other hand, if you aren't vested or can't retire yet and only have a few years left, stepping down may be the best option. This might be a good time to meet with your accountant or a financial planner to discuss the best options for you.

If you think you're being targeted due to your age, talk to an employment lawyer in your state. Sometimes age discrimination can give you leverage to negotiate a better severance package.

Friday, February 8, 2019

Age Discrimination In Hiring Is (Mostly) Illegal. Here Are 3 Ways To Prove It

The 7th Circuit Court of Appeals says it is not illegal to refuse to hire older employees. They followed the 11th Circuit in this. Fortunately for those of you not living in Illinois, Indiana, Wisconsin, Florida, Georgia or Alabama, age discrimination in hiring is still illegal under Federal law, until the Supreme Court says otherwise. It's also still illegal here in Florida and other states that have their own anti-discrimination laws that include coverage for applicants.

So you weren’t hired for the job and suspect age discrimination. But how do you prove it? Here are three ways you can prove you weren’t hired due to age discrimination:

Direct evidence: The interviewer made comments about your age indicating bias. Maybe they asked, “Aren’t you getting close to retirement?” or “How much longer do you plan to work?” Or your age wasn’t disclosed in your resume but when they see you they ask, “How old are you?” or “What year did you graduate?” Or maybe they said something really dumb like what EEOC says happened at Seasons 52: "Unsuccessful applicants across the nation were given varying explanations for their failure to be hired, including 'too experienced,' the restaurant's desire for a youthful image, looking for 'fresh' employees and telling applicants that Seasons 52 'wasn't looking for old white guys.'' That stuff cost Seasons 52 $2.8 million. While direct evidence is rare, it’s great stuff.

Disparate treatment: You are clearly the best qualified candidate. The ad calls for a Master’s Degree in Finance and you have a Doctorate in Finance. The person hired has a B.A. in Psychology. If you can prove that you were the more qualified candidate and that the person who was hired was younger, then you have what’s called a prima facie case of age discrimination. It would be up to the employer to prove that they had a legitimate reason other than age. That doesn’t mean they couldn’t prove there was another reason besides age discrimination, but it’s certainly enough to talk to a lawyer about.

Disparate impact: Even if you don’t have evidence that the employer intended to discriminate against you based on age, there could be hiring requirements that have a disparate impact on older employees and that don’t have a real relationship to the job. For instance, if you’re applying for a legal secretary position, a requirement that you have 20-20 vision without glasses or be able to run a mile would have a disparate impact on older employees (and the disabled, but I won’t get into that). The requirement wouldn’t be justifiable by any business necessity. However, if the requirement is that you be able to type 60 words a minute, that could be a legitimate job prerequisite.

If you can prove any of these three things, then it’s time to either file a charge of discrimination with EEOC (yes, you can do this unrepresented, just like you can file a lawsuit pro se or do surgery on yourself if you want), which is a prerequisite to filing a lawsuit for age discrimination or, better yet, to contact an employee-side employment lawyer in your state about your rights. I'd suggest filing even if you live in one of the six states covered by these terrible decisions, just in case the Supreme Court decides otherwise. You can also check out your state law and file with your state agency if your state law covers applicants.

Friday, February 1, 2019

If My Office Is Closed Due To Snow Or Ice, Do I Get Paid?

It's that time of year again. With 75% of the country getting hit by the polar vortex, I thought I'd better re-run this ever-popular and necessary piece.

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 and neither does Texas, (so maybe it’s a good time to start complaining to your legislators).

Disaster Unemployment Benefits: If you live in in an area declared a disaster area, you may qualify for disaster unemployment assistance. I don't think any areas have been declared yet, but here's where to start searchingto see if you can get disaster unemployment assistance.

If you’re hit or have already been 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.

In the meantime, here in South Florida, I've had to drive with my convertible top up due to temperatures in the 50s. Sad. 

Friday, January 25, 2019

My Employment Law Predictions For 2019

Honestly, I thought about skipping predictions this year, because what's happening with the president is unpredictable. However, I'll take my best shot. Here are my predictions for employment law in 2019:

  • Florida might be more pro-employee: Although our new governor was a Trump pick, I don't think that's the end of the story. He's already fighting to lift some legislatively-imposed restrictions on medical marijuana. His new Chief of Staff was also Charlie Crist's Chief. You might remember that Charlie, although a Republican at the time, was actually pretty good for employees in Florida. I'm thinking we might get some pleasantly pro-employee action out of Tallahassee this year. The legislature is still gruesomely anti-employee though. So we'll see if the new governor can make a difference for working people.
  • More anti-employee executive orders: One thing that Trump has been consistent with is his attacks on working people. He'll continue his anti-employee agenda.
  • More anti-employee federal agencies: All the federal agencies that are supposed to be helping working people, like OSHA, DOJ, EEOC, and NLRB have become more anti-employee under Trump. That will continue.
  • Anti-employee Supreme Court: The Supremes will be pretty consistently anti-employee. They already upheld the transgender military ban. It will only get worse.
  • Pro-employee legislation in the House: The House will pass multiple pro-employee laws. The Senate won't. Even if something miraculously got through, it wouldn't be signed. Sad.
  • Legal marijuana will spread: Despite repeated promises from the Trumpian DOJ to crack down, more states will legalize marijuana. Some will even protect employees from being fired for legal use, or from being fired for approved medical use.
  • Federal employee slavery will end: Eventually, the shutdown will end and the enforced work-without-pay of federal employees will end. Will this cause federal employee unions to demand more protections? Will people leave the federal government in droves knowing this could happen again and again? Very possibly.


Overall, we'll have a bad year for employees, with some possible hope in Florida for a change. Vote better folks.

Friday, January 18, 2019

No, Constructive Discharge Doesn't Equal A Lawsuit

Every once in awhile someone tells me they were constructively discharged, so they want to sue. They're surprised when I say, "For what?" That's because there’s no such cause of action or claim. Just because you were constructively discharged, that doesn't automatically equal a lawsuit any more than being fired equals a lawsuit.

Constructive discharge is where an employee quits work for good cause. If you are constructively discharged, the courts treat it as if you were fired. This means some claims that you were illegally fired (worker's compensation retaliation, retaliation for complaining about discrimination, whistleblower retaliation, adverse action discrimination claims, to name a few) are still allowed even though you quit if you’re constructively discharged. If you would have a case against your employer had they fired you under the same circumstances, then you will also probably have a case against them if a court finds you were constructively discharged.

Most courts are reluctant to find an employee was constructively discharged. The standard is usually that no reasonable employee would have tolerated the conditions of employment. For instance, I’ve seen sexual harassment cases as extreme as rape that weren’t found to have been so intolerable that the circumstances constituted constructive discharge by the employer.

For unemployment purposes, if the company cuts your pay, changes your job duties in a major way, changes your shift, transfers you to a new location, that may be enough to be deemed cause attributable to the employer. But you’d better be sure before you quit if you want to make sure you’ll qualify for unemployment. Sometimes the unemployment office will have a website or have someone you can call to get information. Otherwise, you’ll probably want to be sure of your rights before you quit.

In general I recommend against quitting until you have another job lined up. It’s easier to get a job when you have a job. But if your working conditions are intolerable, for heaven’s sake look for another job.

If your working conditions are intolerable due to discrimination, sexual harassment, failure to pay wages, or something protected by law, complain to HR in writing before you quit and give the company a chance to correct the situation.

My exception to the don't-quit-unless-you-have-another-job rule would be if the work situation is dangerous (rape, assault, unsafe conditions). If that's the case, then get the heck out of there. No lawsuit or potential suit is worth your safety.

Friday, January 11, 2019

Can You Get Fired For Defending Yourself Against An Attack? Probably

The viral video of the woman being physically attacked by a customer at McDonalds over an anti-straw law drew much applause from folks who admired the way the cashier defended herself. However, she's now suspended and faces being fired for not allowing herself to be beaten up.

Should you be able to defend yourself if attacked at work? Common sense says yes, but at-will laws say no. Most employers have zero tolerance for workplace violence, so they fire all employees involved in a physical altercation. Most companies don't want to bother determining who started a fight. If a coworker attacks, I usually recommend workers drop into a fetal and yell for help so they can't be accused of fighting. The same would doubly apply to a customer attacking. Hitting a customer, even if you are attacked first, is a big taboo.

What circumstances would help this employee? There are some things that might save her:

Publicity: For one, a public outcry. A viral video and threats of a boycott if she's fired could go a long way toward saving her. However, there will probably still be a mark on her record and she'll be out if she has any other infraction.

Discrimination: If she can point to an employee of a different race, age, sex, national origin, or other protected status who defended themselves and wasn't fired, she might have a discrimination case.

Common sense: If McDonalds uses common sense instead of applying a zero-tolerance policy, then the company might decide to give her an award rather than punishing her. But corporate common sense in HR decisions is rare. They'd rather impose a draconian standard and err on the side of firing.

What do I think will happen? Well, she's hired a lawyer, so the threat of a lawsuit for negligent security might cool HR's jets. I think she'll be put back to work with a slap on the wrist and a cloud over her head. If I were her, I'd start looking elsewhere for a job.

You probably won't have a viral video to protect you, so my advice about dropping into a fetal and yelling for help still applies in most situations for victims of workplace violence.

Friday, December 21, 2018

How I Did On My Predictions for 2018

I predicted that 2018 would not be a good year overall for employees, and I was right. Here's how my predictions turned out.

Sexual harassment: I predicted that, despite all the brouhaha on #MeToo and sexual harassment, no new legislation would pass and that there would be backlash, and lots of it. There was no way I could predict Kavanaugh though. On the federal level, there was no new legislation, but the states stepped in and took some action. Much of the legislation related to sexual harassment by legislators, which was rampant. Many states decided to police their own. New York stepped up in a big way with prohibition of mandatory arbitration clauses and confidential sexual harassment settlements, among other changes to their sexual harassment laws. Still no laws that I've seen protecting unpaid interns from sexual harassment.

Agency paralysis: I predicted that, with cuts to EEOC, DOJ and NLRB, these agencies would develop backlogs and go into paralysis. I predicted that employees could expect little help from the feds this year. While EEOC actually went into overdrive to clear some backlogs, it was at the expense of employees actually expecting real investigations and serious treatment. DOJ and NLRB went out of their way to reverse Obama-era policies and decisions that favored employees. I said it last year and I was right, that EEOC mediations are still going strong. I stand by my statement that EEOC mediators, at least down here, are some of the best I've ever seen, government or private. I predicted that we would still see cases resolved in EEOC mediations unless the mediation program is cut too. That was correct, but I have noticed that fewer cases are being chosen for mediation, so there were clearly cuts to the mediation program.

Guns at work: I predicted that, thanks to high school students down here, we might start to see states revisiting those idiotic guns at work laws that have been all the rage. I was wrong. Not one state repealed these laws, and West Virginia passed one. I predicted some baby steps on common sense gun control for the first time in this country in a long time, and there was, but we have a long way to go.

Immigration raids: I predicted we'd see more employers being raided to round up illegal immigrants and arrest the bosses for hiring them, along with more traffic stops to round up immigrants. I was right. I never predicted we'd see families separated at the border.

Antitrust: The Department of Justice announced it would start cracking down on no-poach agreements between employers. I predicted this would be a ray of sunshine in an otherwise awful year for employees. DOJ brought a whopping one no-poach antitrust suit this year. It settled. Huzzah!

LGBT rights: I predicted the courts would continue to battle over whether or not Title VII'a sex discrimination prohibition covers sexual orientation. I said the Supremes wouldn't get to the issue this year, and they didn't.

Marijuana crackdowns: I predicted that the feds would start cracking down on legal marijuana use. It's still illegal on the federal level, no matter what your state says. I predicted the crackdown this year would be on the businesses, not on individuals. Fortunately, nothing much happened, and it was Jeff Sessions who was really fueling the anti-marijuana stuff on the federal level. He's gone, so yay I guess.

Overall, we saw nothing much pro-employee in 2018, and lots more reversals of Obama-era pro-employee policies. We saw anti-employee judges and NLRB members appointed. We saw chaos at DOJ. I'd give 2018 a big thumbs down from employees.