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, October 12, 2018

No, Your Employer Can't Force You To Quit

People come to me and say, “I was forced to quit.” Huh? How did the employer do that? Gun to head? Torture devices? Kidnapped loved one? Because your employer can’t make you quit. Quitting is entirely, 100%, up to you.

Just because your boss or HR comes to you and says you have to resign, doesn’t mean you should. My usual advice is never, ever submit your resignation, no matter how much they demand it, unless you have another job lined up or the company offers you an incentive to resign that makes it worth your while.

You need to weigh your options carefully before agreeing to resign. Now is the time to negotiate. If they want you gone, let them pay you to go away. Otherwise, make them fire you. You need to consider the upsides and downsides to quitting versus being fired. Here are some things to consider.

Why You Shouldn’t Quit
You haven’t complained about illegal harassment or discrimination that occurred: It may be a bit late in the game, but if you didn’t follow the company’s written policy on reporting harassment based on race, age, sex, religion, national origin, disability, etc. then you may lose potential claims against the employer. Now is the time to put together your formal, written complaint of discrimination and harassment. Submit it to HR as soon after the meeting where they asked you to resign as you can. If you think the resignation request is being pushed by your harasser, say so. Tell them how others of a different race, age, sex, religion, or whatever your protected category is were treated differently. Tell them that those others are not being asked to resign. Ask them to do a prompt investigation. Sometimes, they really don’t know about the discrimination and reporting it might stop the termination process in its tracks.

They aren’t offering anything: If they don’t offer severance or some other monetary incentive, why would you quit? Don’t make it easy on them. If they want you out of there, they should offer something, in writing.

You might lose your right to unemployment benefits: Some unscrupulous employers use the resignation as an excuse to claim you aren’t entitled to unemployment. It could be your word against theirs if you don’t properly document that you were forced to resign.

They want you to sign something right away: If the employer is shoving something in front of you and demanding you sign it, consider that a red flag. They’re trying to trick you. Don’t sign anything you don’t understand or are too distraught to think about clearly. Tell them you need time to think about it. Take it to an employee-side employment lawyer if there’s anything in it you don’t fully understand.

You have claims against the company: If you think you have a discrimination, whistleblower, worker’s compensation retaliation, breach of contract or other claim against the employer, you may have leverage to negotiate a better exit package. Don’t sign a release of claims without fully exploring your options.

You aren’t fooling anyone: Some people think a resignation looks better on a resume. Maybe. But if you resign and are then unemployed for months or years, who do you think you’re fooling? HR people aren’t (mostly) dumb, so they will know something happened that prompted your resignation.

Why You Should Quit

Great severance package: If you are offered a severance package that will tide you over sufficiently when you’re looking for another job, then you might want to take the deal. Make sure you aren’t also signing away your right to work for a competitor, your pension, or something else of value. Take it to a lawyer to be sure.

Won’t challenge unemployment: In most states, the mere promise that you’ll get unemployment without a hassle isn’t much incentive. Unemployment is usually a fraction of what you were making. However, if you think they might have a basis to successfully challenge your unemployment, then you might consider the resignation as long as they make the promise about unemployment in writing.

You have an alternative: If you have a job offer you’ve been considering, have a startup company you want to spend more time on, or think it might be time to retire, then a forced resignation might help you make a smooth transition. Make sure they agree they won’t tell potential employers or customers anything other than that you left to pursue other options.

If your employer is asking you to resign, you have some power. Now is the time to explore your options, talk to a lawyer, call your union rep, and read everything carefully. You may have more leverage to negotiate in this situation than you think.

Friday, October 5, 2018

Massachusetts Limits Noncompetes - Are You Listening Florida?

Florida has a real chance to turn the governorship and some legislative seats blue this year. Because Florida is one of the worst states for employees in the nation, a change in leadership means an opportunity to change some of the worst anti-employee laws. And in my opinion the worst of the anti-employee Florida laws is our noncompete law.

Massachusetts, after years of wrangling, finally passed a noncompete law that protects its workers against oppressive agreements amounting to virtual indentured servitude. The law went into effect October 1.

Here are some of the provisions of the Massachusetts law that could and should be adopted in Florida:

  • No noncompetes for hourly employees
  • No noncompetes for interns
  • No enforcement of noncompetes for employees fired without cause or laid off
  • No noncompetes for minors
  • Continued employment alone is not consideration for a noncompete
  • Noncompetes can't last more than a year, with the exception of an instance where an employee takes trade secrets
  • Employers have to pay at least 50% of wages for the length of the noncompete period

These are very reasonable restrictions on noncompetes that simply don't exist under the anti-employee Florida law. What are some other restrictions that might be reasonable for noncompetes in Florida that don't exist now?


Noncompetes are bad for economic development, bad for wages, and bad for employees. If you think Florida should follow Massachusetts and other states in limiting abusive noncompete agreements, tell your candidates and vote wisely.



Friday, September 28, 2018

Upset At Work? Don't Walk Out Or They'll Claim You Quit

I see scenarios where employees leave work early for entirely sane reasons. For instance:

  • They are threatened by a coworker or customer and feel unsafe
  • They are so upset by a confrontation with management or a coworker that they are crying
  • They are sexually harassed
  • They are called racial, ethnic, or other discriminatory names

Yet in each of these circumstances, I also see employers claim the employee quit or abandoned their position. Why the disparity?

As I see it, the employer was looking for reason to get rid of the employee and the employee gave them the excuse they needed. Otherwise, of course the employer would understand the employee leaving early to regroup, calm down, or get to safety.

In many cases, the employee actually calls or goes to HR or management and explains what happened and why they are leaving. They are told to go ahead and go. Yet they are still accused of abandoning their position or quitting.

What's an employee to do?

Here are some suggestions if you face intolerable conditions at work:

If you feel unsafe, call 911: Even this might not save your job, since many employees get fired for the very act of calling the cops. Still, this is probably better than leaving. However, if you are truly unsafe, such as being physically threatened, get the heck out of there. No job is worth your life.

Put it in writing: Rather than a call or in-person conversation, put your complaint in writing. Don't say you were bullied or "harassed." Say you were sexually harassed or harassed due to race, age, national origin, disability, or other protected category so you are protected against retaliation.

Ask permission: Instead of saying you are leaving, ask, again in writing, if it's okay to leave to calm down or get to safety. If you have permission, it's harder for them to say you quit or abandoned your job. If the permission is verbal, put that in writing. "This will confirm that you called me today at 4:32 p.m. and advised that I have permission to leave early due to my complaint of sexual harassment against John Doe. Thank you for your consideration."

Even these steps might not save your job, so try to stay if you can. But if you have to leave, document the best you can before you go.



Monday, September 17, 2018

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. In general, you don't have to work in unsafe conditions, so I'm re-posting this for those affected by Florence. 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.

Thursday, September 13, 2018

If My Office Is Closed Due to Hurricane Florence, Do I Get Paid?

It's time, unfortunately, to re-run this popular and necessary column. I hope you make out okay in Hurricane Florence 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. North Carolina has no such requirement and neither does Texas, (so maybe it’s a good time to start complaining to your legislators). 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 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.

Friday, August 31, 2018

New EEOC Miami Policy: No Opportunity For Employees To Respond

In the bad old days, after an employee filed a Charge of Discrimination, employers would file a position statement and then one of two things happened: either the investigator would read a summary of the position statement quickly over the phone, or the investigator would write up a summary of the position statement. Then the employee would have 10 days to respond.

I say the bad old days, because this process really didn't give the employee a full opportunity to understand the employer's response or fully respond.

That all changed when EEOC implemented new Position Statement Procedures on January 1, 2016, entitling employees to a copy of the position statement if they request it. They also gave employees 20 days to respond to the position statement once received. This was way better, because employees had a full opportunity to read and understand what their employer was saying, and then fully respond to and rebut the position statement.

Even at its worst, EEOC gave employees at least some opportunity to respond. At its best, it gave employees a truly full and fair chance to respond.

But not anymore. I have had several cases recently where EEOC got the position statement and then dismissed the charge without giving the employee any chance to respond at all or even tell them they had received it.

When I asked EEOC's General Counsel to look into this, he referred me to the Director, who did not respond to my query at all. When I followed up because it happened again, the Director decided to insult me personally and tell me to take it up with NELA (the National Employment Lawyers Association) and Congress. So I think I will.

I have already directed my concerns about this utter lack of due process for employees to NELA. If you think this new process is terrible and doesn't comply with EEOC's mission to conduct a full investigation of charges of discrimination, contact your member of Congress and tell them you think EEOC should allow employees an opportunity to respond to employer's position statements so that they may conduct a full investigation.

By the way, this isn't the only anti-employee activity EEOC has engaged in since the change in presidential administrations. They have also engaged in dismissing cases immediately upon filing without any investigation (I've seen this happen personally), and I have heard multiple stories of them telling people they don't have a case and refusing to even take their charge (this is particularly awful because filing with EEOC is a prerequisite to filing a lawsuit, and employees have a very short time period to file).

People come to EEOC because they need help, because they think their employer engaged in unlawful discrimination. They also come to EEOC because they are legally required to do so if they even want to think about filing a lawsuit. So why has EEOC suddenly decided that its mission is to only help employers and not employees? Has EEOC been given a new mission to try to discourage or prevent employees from exercising their legal rights?

I think some more investigation is warranted.

Monday, August 13, 2018

Is It Legal To Record A Conversation At Work?

In light of Omarosa's recordings of conversations with her bosses at the White House, I thought I'd discuss a question I'm asked all the time in my law practice: Is it legal to record a conversation at work?

Unfortunately, there's no easy answer to this question, and a mistake can land you in jail. Illegal tape recording can have both criminal and civil penalties. My advice is almost always: When in doubt, don't. 

Still, many employees want to record a boss or HR at work, and there are good reasons to do so. If you have a sexual harasser, it's handy to catch them red-handed. It's hard to deny something a judge or jury can hear in the harasser's own voice. Some employees want to record meetings with HR to make sure they get all the important information or to have evidence of the reason given for termination or discipline. Other employees want to get evidence of discrimination or other illegal practices of the employer.

Here's what you need to know about recording conversations at work:

One-party consent: In most states, as long as you're a participant in the conversation, you can record at will. South Carolina is one of these states, but the employee who was arrested taped a conversation between other employees, not herself. That's not allowed, even in one-party consent states

All-party consent: Thirteen states, California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Oregon, Pennsylvania, and Washington, require all parties to the conversation to consent to being taped. Hawaii, a one-party consent state, requires all-party consent if the device is installed in a private place. A Florida government employee was arrested a few years ago for giving a reporter a tape recording of a conversation she had with a supervisor. She cut a deal for community service, so we don't know how her trial would have turned out. These laws are sometimes referred to as "two-party consent" laws, but if there are three people in the conversation, all three must consent. For a detailed state-by-state survey of workplace surveillance laws, Justia has a summary of laws by state that can give you more details on your state law. The Digital Media Law Project has another handy state-by-state resource here but it is out of date.

Expectation of privacy: You can almost always record conversations in public areas, because the courts say there's no "expectation of privacy" in those places. Whether or not you are a party to the conversation, if it's out there in public, you may be allowed to tape it. Here's where it gets tricky. Many courts have held that there's little or no expectation of privacy in the workplace. There are cases saying, for instance, that a party to a conference call has no expectation of privacy.

As an example, cases in my home state of Florida on the expectation of privacy at work say things like: "Society does not recognize an absolute right of privacy in a party's office or place of business." "[A]lthough defendant may have had reasonable expectation of privacy in his private office, that expectation was not one which society was willing to accept as reasonable or willing to protect." "Society is willing to recognize a reasonable expectation of privacy in conversations conducted in a private home. However, this recognition does not necessarily extend to conversations conducted in a business office."

The problem I have with relying on cases like these to tape at work is the use of weasel-words like "necessarily" and "absolute" and "reasonable." These cases are very fact-specific and that means a court could still find that your boss or coworker had an expectation of privacy. If you get it wrong, you can end up in jail. That Florida employee who was arrested for taping in a public building should give you pause about relying on these "no expectation of privacy" cases too heavily.

Retaliation: If you record a conversation to document illegal discrimination or illegal harassment (we're talking harassment or discrimination based on race, age, sex, religion, national origin, disability, pregnancy, or other protected category, not bullying), then you may or may not be protected against retaliation by your employer. The courts have split on this issue. Depending on your state, your employer may be allowed to fire you for recording a conversation at work (even though they can't fire you for reporting discriminaiton).

Getting permission: One way to get around problems in all-party consent states is, when in doubt, pull out your recorder and turn it on. Say, on the recording, "You don't mind if I tape this do you?" If the other person or people say they don't mind, keep recording. If anyone objects, turn it off. Pull out a pad of paper and a pen and take good notes instead. 

Creative ways around: I had a case where one creative employee knew the harasser was approaching her office so she called a friend and put her on speaker to listen. That way she had a witness. Even taking notes helps bolster a case. Your notes can be evidence. 

Other evidence: Don't forget to save things like text messages (take screen shots and print), emails, Snapchat and other social media. Don't let that stuff be auto-deleted or lose it when you drop your phone in a toilet. It's your burden to prove your case, and losing evidence can be held against you. Have nothing in writing and no witnesses? Your own testimony is evidence. If you come across as credible, that could be enough.

To summarize, you can probably tape a conversation at work that you're part of as long as you live in one of the 37 one-party consent states. You can also possibly tape a conversation that's in a public area (lobby, office or conference room with doors open, stairwell). You can maybe tape a conversation in the office behind closed doors. If you get it wrong, you're in possible criminal trouble, so be careful. Even if you get it right, you can probably be fired for the recording.