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 24, 2014

States With Pro-Employee Laws: Noncompete Agreement Hardship On Employee As Defense

Or, States That Don't Suck For Employees Part VIII

Living in Florida, one of the worst states in America for employees on noncompete agreements, I'm used to having to deal with a statute that says the courts cannot consider any economic hardship on the employee when enforcing noncompete agreements. Imagine my surprise when researching New York law to find that other states aren't so heartless.

If you live in Alabama, Arizona, DC, Delaware, Georgia, Illinois, Kansas, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, New York, Ohio, South Carolina, Tennessee, Utah, Vermont, West Virginia, Wisconsin, Wyoming, then your state courts will balance the hardship imposed on you when considering enforcing whether to enforce the noncompete.

Alaska has a similar defense, which is whether the employee's sole means of support is barred.

Of course, if you're lucky enough to live in California, noncompete agreements are rarely enforced there.

In a country where sandwich makers can be forced to sign noncompetes, it's time that the states that don't consider economic hardship on the employee wake up and protect their citizens.

Friday, October 10, 2014

States With Pro-Employee Laws: Work Breaks For Employees

 Or, States That Don't Suck For Employees, Part VII

Some people don't believe me when I tell them that no federal law requires any breaks for employees, but it's true. No lunch breaks, rest breaks or even bathroom breaks are mandated by law (and don't tell me about OSHA and bathroom breaks*). A majority of states also don't have any laws requiring breaks for anyone but minors.

Still, if you're lucky you might live in a state that has some laws requiring work breaks. Here's how it breaks down:
  • Meal breaks:  Only 20 states require any meal breaks. California, Colorado, New Hampshire, North Dakota and Washington require 1/2 hour within five hours of work. Connecticut and Delaware require ½ hour after first 2 hours and before last 2 hours for employees who work 7½ consecutive hours or more.Illinois, Kentucky, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New York, Oregon, Rhode Island, Tennessee, Vermont and West Virginia all have laws about meal breaks. In the other 30 states, employers are allowed to starve you.
  • Rest breaks: Only nine states require any rest breaks. California, Colorado, Kentucky, Nevada, Oregon and Washington require 10 minute breaks for every 4 hours of work. Minnesota and Vermont require reasonable bathroom breaks. Illinois also has rest break requirements but only for hotel attendants. All of these states also require meal breaks. 
If you aren't in one of these 20 states, you're at the mercy of your boss to be allowed to eat, go to the restroom, or just take a stretch. Yet I still encounter folks regularly in Florida (one of the no-breaks-for-you states) that get fired after insisting on their legal right to take their lunch or rest break.

True, most bosses won't actually make you have a potty accident, but there are sadistic jerks out there who will. You do have some rights though, despite this.

Disability: If you need regular meal or bathroom breaks due to a disability, then put in a reasonable accommodation request under the Americans With Disabilities Act and have HR mandate your breaks. If the boss still won't honor your approved accommodation, report him/her to HR. If the company won't accommodate you, you probably have a disability discrimination case.

Nursing: You're entitled to a break and a private place to express breast milk if you're nursing.

Sex discrimination: I ran into a woman who was told she couldn't take her purse to the restroom when she had her period. Men had no restrictions on what they could take to the restroom. Fortunately, she reported it and HR had the sense to stop this silliness immediately.

Obviously, if the employer is only allowing employees of a particular race, national origin, age or other protected category to take breaks, that's also illegal. I shouldn't say it's obvious though, because any boss who doesn't allow reasonable bathroom or meal breaks is a sadistic idiot.

*I know I said don't tell me about OSHA, but they really are supposed to make employers allow reasonable bathroom breaks. See OSHA Standard # 1919.141(c)(1)(i)
OSHA's sanitation standard for general industry, 29 CFR 1910.141(c)(l)(i), requires employers to provide their employees with toilet facilities:
Except as otherwise indicated in this paragraph (c)(l)(i), toliet [sic] facilities, in toilet rooms separate for each sex shall be provided in all places of employment in accordance with Table J-1 of this section .... [emphasis added]
This memorandum explains OSHA's interpretation that this standard requires employers to make toilet facilities available so that employees can use them when they need to do so. The employer may not impose unreasonable restrictions on employee use of the facilities." "The language and structure of the general industry sanitation standard reflect the Agency's intent that employees be able to use toilet facilities promptly." In light of the standard's purpose of protecting employees from the hazards created when toilets are not available, it is clear that the standard requires employers to allow employees prompt access to sanitary facilities. Restrictions on access must be reasonable, and may not cause extended delays.
So yes, OSHA does state that they require employers to allow prompt bathroom breaks. I wish you good luck in actually getting OSHA to enforce this standard though. At least in Florida, they'll probably refer you to the Department of Labor, which has nothing whatsoever requiring bathroom breaks under their jurisdiction.

Friday, October 3, 2014

States With Pro-Employee Laws: Ban The Box

Or, States That Don't Suck For Employees, Part VI

You may have heard the term “ban the box” but not know what it means. These laws generally prevent employers from asking about applicant arrests or convictions at the beginning of the application process, and only allow inquiries after the applicant passes their initial screening. Why? Because about 70 million Americans have some criminal record, and the majority of them are minorities. An entire class of citizens has been made almost completely unemployable due to criminal records that have nothing to do with their ability to do jobs.

Thirteen states, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Mexico, New Jersey, and Rhode Island, along with 67 cities and counties, have passed ban-the-box laws. Tampa and Jacksonville are just some of those cities. Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island have the only statewide laws applying to private employers. The rest apply to government employers.

Hawaii’s law was the first, and it prohibits employers from asking about criminal records until a conditional offer of employment is made (similar to what ADA requires for inquiries about disabilities). Since 1998, when this law went into effect, the incidence of repeat criminal offenses in Hawaii has dropped by 57%. Illinois law is similar to Hawaii’s.

New York’s law says employers can’t discriminate in the hiring process against applicants who have convications unless there’s a direct relationship between one or more of the previous criminal offenses and the employment sought, or if the employment would involve an unreasonable risk to others.

New Jerseys’s brand new law prohibits posting of ads saying those with criminal histories won’t be hired and from asking about arrests and convictions until the applicant is the top candidate selected. Then the employer must also consider factors like rehabilitation, good conduct, length of time that has passed, and how the crime relates to the employee’s suitability for the job.

Massachusetts’ law bans questions on written applications but not in interviews. If employers are going to refuse to hire based on a criminal record, they must first provide the applicant with a copy of the record.

Minnesota’s law is similar to Hawaii’s, but state law there also says government employers can’t discriminate unless the conviction is directly related to the job sought. It requires all employers to consider job-related factors in using criminal records.

Rhode Island’s law prohibits asking on written applications but employers can ask during interviews.

The ban-the-box movement is all about giving folks a fair chance. If they’ve done the time, let them get on with their lives. Americans usually like to give people a fair second chance, so let’s do that for the 70 million Americans who have criminal records. If we’re like Hawaii, letting people with records get paying jobs will drastically reduce repeat criminal offenses.

Friday, September 26, 2014

Your Employer Wants To Indoctrinate You With Their Politics

I recently found out about an organization called the Job Creators Network, which some big CEOS are involved in like Roger Ailes (you know, Faux News), David Hernandez of Liberty Power (formerly with, Enron), and other big corporate heads. Their major goal in life seems to be to indoctrinate employees into voting against their own interests.

Well, that's not what they say. They say:
America’s employees, particularly non-union employees, are an untapped reservoir of support for free enterprise. Job Creators Network’s E2E Communication Program leverages employee support by providing employers across America with the tools, materials, and guidance they need to educate their employees about the impact of government policies on their jobs, pay, benefits and families. E2E promotes a better-informed public by educating employers about information they can legally provide to their employees. A well-informed public is the best defense against bad public policy.
That's right. Your employer is going to do you the huge favor of telling you how to vote. They want you to be well-informed. They have an Employer To Employee Communications Program with a toolkit for employers to explain how to "educate" you on important issues.

They have a helpful website for employers to relay their political message to employees. Here's a good summary of the message. Unions = Bad. Minimum Wage Increases = Bad. Affordable Care Act = Bad. Regulations = Bad. Personal Injury Suits = Bad. Employers = Good. Big Business = Good. Let's reduce taxes on your poor boss and eliminate those nasty unions, regulations and employment laws.

If you buy into this, I have some land to sell you west of me (west of me is the Everglades). I find the whole concept of employers indoctrinating employees in politics terrifying. They have you captive, and now they get to fling propaganda at you at will. If they have their way if you complain about your exploding Pinto you'll have to do indentured servitude at Ford for 10 years as punishment for your chutzpah. We'll be back to company stores, locked fire-hazard sweat shops, and child labor in no time.

You can expect the indoctrination to ramp up as we get closer to the elections. If you want real information about how some of these issues affect employees and don't want to buy into the big corporate propaganda, here are some places you can look to get pro-employee information.

Of course, you can always check here if you want to know what's the latest in employment law. You can also check out my weekly column over at AOL Jobs.

Don't buy what your employer tells you is best for your wallet. They care about what's best for their wallet, not yours. Educate yourself and get informed about the issues before you vote.

Friday, September 19, 2014

States With Pro-Employee Laws: Domestic Violence Victim Workplace Protection

Or, States That Don't Suck For Employees Part V

Massachusetts was the latest state to enact a law requiring employers to give victims of domestic violence time off work without penalizing them. Since I frequently raunch on Florida for being so anti-employee, I decided to write today to give my home state props for being one of sixteen states that have laws protecting employees who become domestic violence victims.
  • Massachusetts' law requires employers with 50 or more employees to give up to 15 days off for medical attention, securing new housing, court proceedings and other needs related to the domestic violence.
  • New Jersey's law, passed last year, says an employee/victim is entitled to time off for treatment or counseling, and also says they have to be allowed to attend legal proceedings, civil or criminal, relating to the incident.  
  • California law says an employer can't fire an employee for being a domestic violence victim, and it also requires employers to make reasonable accommodations to secure the workplace for the victim's safety. Employers with 25 employees or more must grant victims reasonable leave to deal with court dates and other issues relating to the domestic violence.
  • Florida law grants domestic violence victims up to 3 days of protected leave. Employers cannot discharge, demote, suspend, retaliate or otherwise discriminate against an employee for exercising their rights to domestic violence leave. To our legislature's credit, this law has been in place since 2007, so we were a whopping 7 years ahead of pro-employee Massachusetts for a change. Miami-Dade County has an ordinance providing for up to 30 days of protected leave.
  • Colorado provides up to 3 days of leave if the employer has 50 or more employees.
  • Connecticut provides for up to 12 days of leave and bans discrimination against domestic violence victims.
  • Washington DC has a sliding scale for leave depending on how large the employer is.
  • Hawaii also has a protected leave, the amount of which depends on the size of the employer. Employers can't discriminate against victims and also must provide reasonable accommodations.
  • Illinois law requires reasonable accommodations, prohibits discrimination and 8 - 12 weeks of protected leave, depending on the size of the employer
  • Kansas law says employers can't discriminate against domestic violence victims who need time off.
  • Maine law grants reasonable protected domestic violence leave.
  • New Mexico provides up to 14 days of protected leave.
  • New York state prohibits discrimination against domestic violence victims. New York City and Westchester County require reasonable accommodations for domestic violence victims.
  • North Carolina prohibits discrimination against victims for taking reasonable domestic violence leave.
  • Oregon requires employers with 6 or more employees to grant reasonable leave and prohibits discrimination. Portland also requires protected domestic violence leave.
  • Rhode Island prohibits discrimination.
  • Washington provides reasonable leave. Seattle has its own leave ordinance and also bars discrimination.
  • Philadelphia provides leave depending on the size of the employer.
A proposed federal law to protect domestic violence victims from discrimination at work went nowhere. Wouldn't it be good to have some uniform protections? Who the heck is against protecting domestic violence victims? Do we really think that getting beaten up should be grounds for termination? 

A pretty good summary of state laws up through June 2013 is here. It should also be noted that many states have laws protecting crime victims from being punished for missing time from work to testify in criminal proceedings.

Friday, September 12, 2014

States With Pro-Employee Laws: Paid Sick Leave

Or, States That Don't Suck For Employees, Part IV

Oh, sure, if you're lucky enough to qualify for Family and Medical Leave, you may or may not get some paid time off if you have a serious medical condition. You're paid under that law if you have any paid sick leave or vacation time, and then the rest of the leave is unpaid. However, whether or not you get any paid sick time is up to your employer.

That is, unless you live in a state beginning with the letter C.

California became the second state in the nation to mandate paid sick leave under the law signed this week. Most employees will accrue three paid sick days per year, at the rate of one hour for every 30 hours worked. San Francisco and San Diego already had a mandatory paid sick leave ordinance in place.

Connecticut was the first state to mandate sick leave. Employers with 50 or more employees, unless they are non-profits, must provide 1 hour of sick leave per 40 hours worked, up to 40 hours per year of paid sick time to service workers.

Massachusetts may break the C trend because voters there will get to approve a paid sick leave law when they vote in November.

Five cities in New Jersey have paid sick leave ordinances. So have two cities in Oregon. New York City has a paid sick leave law, along with Seattle and Washington, D.C.

The U.S. is the only major Western country without any law requiring paid sick leave for employees. Of 22 countries studied, we are the only country that provides zero paid sick leave for a worker undergoing a 50-day cancer treatment and we're 1 of only 3 countries that does not provide paid sick days for a worker missing 5 days of work due to the flu.

Making workers come to work sick is bad for everyone. It spreads illness and results in crappy morale. Hopefully more states (or even Congress) will wake up soon.

Friday, September 5, 2014

States With Pro-Employee Laws: Crackdown On Misclassification

Or, States That Don't Suck For Employees, Part III

With wage theft rampant and employers trying to figure out ways to not pay employment taxes (and avoid application of employment laws), many employers try to say, "Boom! You're an independent contractor now." They shove an independent contractor agreement in front of an employee and stop paying employment taxes. The employee is told to take it or hit the road.

While the handy-dandy SS-8 form that IRS has is a good tool for employees to force employers to correctly classify them, some states have taken larger steps to protect employees against greedy employers who break the law. Here are some states that have stepped up to stop misclassification:

Misclassification is a serious problem for employees, but it also hits the states and taxpayers in the wallet in the form of unpaid taxes, unemployment compensation contributions, and worker's compensation premiums. I don't understand why every state isn't cracking down on misclassification, so maybe someone can explain it to me. Any legislators out there want to tell me why they're pro-misclassification?