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, May 18, 2018

Customer Heaping Racist Abuse On Employees? Employer Must Stop It Or Risk Suit

The video of the guy heaping abuse on a restaurant's employees for speaking Spanish that went viral made me wonder: what did the restaurant do after this? A company's duty to keep the workplace free of national origin and immigration status harassment extends to protecting its employees from customer abuse and discrimination.

The most common case comes when a customer demands the company engage in discrimination by not assigning people of a particular race or national origin to them. An example would be a hospital patient refusing to be treated by people of a particular race.

But when a customer heaps discriminatory abuse on employees, it is the employer's duty to keep the workplace free of discrimination. The employer now knows about this customer's propensity to discriminate. It now must take prompt action to correct the situation.

But what can an employer do to stop a racist customer? Here are some actions that can be taken in this situation, and I hope the employer did at least some of this:

  • Remove the customer: In this case, the manager was one of those being subjected to abuse. Still, the manager would be within her rights to ask the customer to leave and call the police if he refused.
  • Ban the customer: Let's say management didn't find out about the situation until after the case. The customer could be banned from the restaurant. In the case of a company where the customer represents a large chunk of sales, it's tempting to let it pass. But the company could be liable for the customer's bad behavior.
  • Make sure the customer is accompanied at all times: If the customer is one that is too big to ban, then make sure someone in management is assigned to be with that person at all times they have contact with employees so they can shut down any bad behavior. Let the customer know that further bad behavior will result in banning. Of course, that may be an empty threat if the customer is a major one. Still, the company must stop the bad behavior, even if it means getting rid of an otherwise good customer.

Here's what the company absolutely cannot do:

  • Accede to customer wishes: The company cannot allow a customer to demand it engage in discrimination. The answer to the customer who wants only people of a particular race, national origin or religion to deal with them must be a resounding no.
  • Retaliate against the employee/victim: The employer must not deal with the problem by firing the employee, assigning them to a less-desirable position, or otherwise retaliating against them for being a victim of discrimination.
If a customer is engaging in this kind of behavior, report it to HR or someone in management. If your employer allows customers to engage in discrimination, sexual harassment, or discriminatory harassment, or retaliates against you for reporting it, contact an employee-side employment lawyer in your state to discuss your rights.

Friday, May 11, 2018

Senate Democrats Seek To Ban Noncompetes

It won't pass, but a group of Democrats in the U.S. Senate have proposed a bill that would ban noncompete agreements. The Workforce Mobility Act would prohibit the use of non-compete agreements and require employers to notify employees that these agreements are illegal. It would also allow the U.S. Department of Labor to enforce the ban with fines on the employer.

Here are the key provisions:
3. Presumption of illegality of covenants not to compete in employment contractsA covenant not to compete contained in an employment contract made between an employer and an employee is anticompetitive and violates the antitrust laws unless the employer establishes by a preponderance of the evidence that the covenant does not have an anticompetitive effect or that the pro-competitive effects outweigh the anticompetitive harm.
4. Private right of action
(a) In general
Any person who fails to comply with section 2 shall be liable to any individual in an amount equal to the sum of—
(1) any actual damages sustained by the individual as a result of the failure;
(2) such amount of punitive damages as the court may allow; and
(3) in the case of any successful action to enforce any liability under this subsection, the costs of the action together with reasonable attorney’s fees as determined by the court.
(b)Venue
Any person may bring a civil action under subsection (a) in any appropriate district court of the United States.
5. Trade secretsNothing in this Act shall preclude an employer from entering into an agreement with an employee to not share any information (including after the employee is no longer employed by the employer) regarding the employer or the employment that is a trade secret as defined in section 1839 of title 18 of the United States Code.
It's an excellent bill, but it will take a blue wave in November to get it passed, and it will be vetoed if it does pass. Still, it's a start. I can dream, can't I?

Vote Best. 

Friday, April 20, 2018

Employer Agreeing Not To Poach Competitor's Employees? That's A Jailing

The Department of Justice's Antitrust Division is serious about going after employers who agree not to poach a competitor's employees. So serious, that they announced in 2016 they would start criminally prosecuting violators, and they recently announced some prosecutions are imminent. In a joint publication with the Federal Trade Commission titled Antitrust Guidance for Human Resource Professionals, the DOJ said this about no-poach agreements (these are my favorite excerpts):
From an antitrust perspective, firms that compete to hire or retain employees are competitors in the employment marketplace, regardless of whether the firms make the same products or compete to provide the same services. It is unlawful for competitors to expressly or implicitly agree not to compete with one another, even if they are motivated by a desire to reduce costs.  
Violations of the antitrust laws can have severe consequences. Depending on the facts of the case, the DOJ could bring a criminal prosecution against individuals, the company, or both. And both federal antitrust agencies could bring civil enforcement actions. In addition, if an employee or another private party were injured by an illegal agreement among potential employers, that party could bring a civil lawsuit for treble damages (i.e., three times the damages the party actually suffered).  
An individual likely is breaking the antitrust laws if he or she:  
  • agrees with individual(s) at another company about employee salary or other terms of compensation, either at a specific level or within a range (so-called wage-fixing agreements), or 
  • agrees with individual(s) at another company to refuse to solicit or hire that other company’s employees (so-called “no poaching” agreements). 
Naked wage-fixing or no-poaching agreements among employers, whether entered into directly or through a third-party intermediary, are per se illegal under the antitrust laws. That means that if the agreement is separate from or not reasonably necessary to a larger legitimate collaboration between the employers, the agreement is deemed illegal without any inquiry into its competitive effects.  
Going forward, the DOJ intends to proceed criminally against naked wagefixing or no-poaching agreements. These types of agreements eliminate competition in the same irredeemable way as agreements to fix product prices or allocate customers, which have traditionally been criminally investigated and prosecuted as hardcore cartel conduct. Accordingly, the DOJ will criminally investigate allegations that employers have agreed among themselves on employee compensation or not to solicit or hire each others’ employees. And if that investigation uncovers a naked wage-fixing or nopoaching agreement, the DOJ may, in the exercise of its prosecutorial discretion, bring criminal, felony charges against the culpable participants in the agreement, including both individuals and companies. 
Sharing information with competitors about terms and conditions of employment can also run afoul of the antitrust laws. Even if an individual does not agree explicitly to fix compensation or other terms of employment, exchanging competitively sensitive information could serve as evidence of an implicit illegal agreement. While agreements to share information are not per se illegal and therefore not prosecuted criminally, they may be subject to civil antitrust liability when they have, or are likely to have, an anticompetitive effect. 
Additionally, merely inviting a competitor to enter into an illegal agreement may be an antitrust violation – even if the invitation does not result in an agreement to fix wages or otherwise limit competition.  
Reports can be made to the Division through the Citizen Complaint Center by e-mail (antitrust.complaints@usdoj.gov), phone (1-888-647-3258, toll free in the U.S. and Canada, or 202-307-2040), or mail (Citizen Complaint Center, 950 Pennsylvania Avenue, NW, Room 3322, Washington, DC 20530).  
Reports can be made to the FTC through the Bureau of Competition’s Office of Policy and Coordination by email (antitrust@ftc.gov), phone (202-326- 3300), or mail (Office of Policy and Coordination, Room CC-5422, Bureau of Competition, Federal Trade Commission, 600 Pennsylvania Avenue, NW, Washington, DC 20580). 

In my opinion, this not only means that your employer cannot have a gentleman's agreement with a competitor not to hire each other's employees, but that such an agreement is prohibited even when it is done to settle a noncompete lawsuit involving a noncompete agreement of an employee.

If your employer is breaking the law, don't participate in those antitrust violations. You could land in jail. Instead, report them to the Department of Justice or the FTC. If you are the victim of a no-poach arrangement, contact an employee-side employment lawyer in your state.

Friday, April 13, 2018

Are You A Liar? Arbitration Is The Forum For You

Arbitration is very popular with employers, and no wonder. It's a liar's forum that employees can be blackmailed into. While courts penalize litigants for lying with heavy sanctions and dismissal of their claims/defenses, there is little a court can do when a litigant lies in an arbitration.

The Federal Arbitration Act, 9 U.S. Code § 10(a) provides:
In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—

(1) where the award was procured by corruption, fraud, or undue means

The Florida Arbitration Act, Fla. Stat. § 682.13 provides:
Vacating an award.—

(1) Upon motion of a party to an arbitration proceeding, the court shall vacate an arbitration award if:

(a) The award was procured by corruption, fraud, or other undue means
However, courts have refused to interpret these provisions to allow a court to refuse to enforce an arbitration award procured by perjury, or to set aside judgments entered on awards procured by perjury, except where the perjury wasn't "discoverable upon the exercise of due diligence prior to or during the arbitration." And the perjury must, "materially relate to an issue in the arbitration."

This means that if you know a party is lying during the arbitration, can prove they lied, do your best to impeach them during the proceeding, and the arbitrator still enters judgment for the liar, you have no remedy. The court can't penalize the liar. Arbitration laws give judges almost no leeway to review an arbitration award.

In court, if the other side lies and you can prove it, but the jury finds for the liar anyhow, the judge can set aside the judgment. And if the trial judge doesn't do it, the appellate judge can. Judges hate liars.

This is just one of the many problems with the one-sided forum that is employment arbitration. Employers like it because there are almost no checks and balances. They mostly pick arbitrators that come from an employer-side background, and that tend to rule for employers. While many arbitrators, even from the employer side, try to be fair when wearing the neutral hat, many whose income depends on getting selected by employers are not. Rule for an employee and you can be blackballed from being chosen to arbitrate by employers. So what's a little lie between friends?

Employers in Florida and many states can force employees to sign arbitration agreements with a sign-or-be-fired threat, and the courts don't consider this to be duress. Everyone with any common sense understands that this is coercion, but it's allowed.

I used to be a strong believer in arbitration as a good way for parties to voluntarily choose to resolve disputes. But when one side can blackmail another into "voluntary agreeing" to arbitrate, then veto any arbitrators it knows might rule for employees, plus get away with lying at will, it's a travesty.


Friday, March 23, 2018

Dear Employees and Job-Seekers: Stop Making These Career-Killing Mistakes

As someone who has handled employee-side employment law for many years, I run into the same frustrating mistakes over and over again. I thought I'd touch on a few that are common so that maybe I can stop you (or a friend or family member) from destroying their career.

Here are the most common career-killing mistakes I see in my practice:

  1. Complaining about harassment: This is really the number one problem I see. If you write a long email to HR or your boss complaining that you are being "harassed," you aren't protected against retaliation. While harassment due to race, age, sex, national origin, religion, disability, or another legally-protected category is illegal, just plain "harassment" is not. So reporting it that way doesn't protect you against retaliation. When I ask why people didn't report that they were being treated differently than coworkers of a different race, sex, etc. they usually say something like, "I didn't want to go there." Well, if you'd gone there, firing you for your complaint would have been illegal. But firing you for saying you were harassed or bullied: not illegal.
  2. Disclosing pregnancy or disability during interviews or applications: So many people think they have to disclose a pregnancy or disability right up front when they're job hunting. And I know many misguided TV shows portray failing to do so as somehow dishonest. But disclosing pregnancy or disability before you get a job offer mostly means the offer will never happen. You need to disclose after you get the offer, and only if you need accommodations such as time off for doctor's appointments. If the job offer is withdrawn after you seek accommodations, you might have a discrimination case.
  3. Failing to put in for intermittent Family and Medical Leave: If you have worked at least a year and your employer has at least 50 employees, odds are you qualify for FMLA. If you need periodic time off for doctor's appointments, to care for a family member, to adjust your medications, or other medical reasons, then put in for intermittent FMLA. That way, you are legally protected against having those absences, latenesses, or leaving early held against you. I'm not sure why many employees are so hesitant to put in for FMLA when they or a family member have a serious medical condition. FMLA is there to protect you. Use it.
  4. Failing to report sexual harassment in writing: If the boss or a coworker is hitting on you, making inappropriate comments or touching you, report it under the company's sexual harassment policy, but do so in writing. Otherwise, I find that HR will almost always denied that you made any legally protected complaint. They'll claim you complained about unfair treatment or harassment or bullying but never mentioned that it was sexual harassment. 
  5. Failing to get out of a toxic environment: If you have a workplace that is making you physically or mentally ill due to bullying or other toxic conditions, get the heck out of there. But do it on your own time. Start looking and keep working. The mere act of job hunting will frequently make the terrible job more bearable.
  6. Quitting without having a job lined up: If you let a sexual harasser or workplace bully run you out of a job before you have something lined up, they win. You're letting them put you in an even worse situation. When people tell me the workplace is too stressful and they have to get out, I ask them if they will be more stressed staying in the workplace or whether they will be more stressed being unemployed for 6 months or a year. It's way easier to get a job if you have a job. If you're in physical danger, then get out no matter what. Otherwise, unless you have enough savings to last at least a year while you're job hunting, try to stick out the bad situation while you're looking. Having a large resume gap is often a career killer. Oh, and nobody can actually force you to resign.
Hopefully I've just stopped you from making one of these career-killing mistakes. Tell a friend or a family member. Spread the word.

Tuesday, March 13, 2018

Avoid Employers With White House Level Turnover

As much as potential employers might try to lure you in with big promises, one major red flag that indicates an employer to avoid is high turnover. Bad employers will give all kinds of excuses for why so many have left or been fired, and none of it was their fault, of course. It's all bad luck, bad employees, bad fit, but never, ever, that they're a bad employer.

I mention this, of course, in light of the White House's mind-blowing record-setting turnover rate that is rising as fast as I can type (two more today and counting). An employer with a 40+% turnover rate in a year is a bad employer. I guarantee that.

At some point, any reasonable employer has to take responsibility for the fact that they can't keep employees. Once the turnover rate is over 20% for an employer with at least 20 employees, that employer should start looking inward and addressing the problems causing people to leave.

Here are just some reasons employers have a mass exodus:

  • Bullying: Allowing bullies to run rampant a la the White House leads to brain drain.
  • Sexual harassment: Sexual harassment goes hand in hand with bullying, because sexual harassment is about power, not sex. Harassers are bullies with a specific agenda. Allowing harassers to run amok causes low morale and a frat house atmosphere, such as the Fox debacle. The harassers accelerate their behavior like Weinstein. Good people leave.
  • Poor training: If an employer is claiming lots of employees are poor employees, just not getting it, don't have the requisite skills, the training may well be the problem. Throwing folks in without training and then complaining about it is the employer's fault, not the employees'.
  • Financial trouble: Employers that don't pay people, pay late, cut benefits, have lots of layoffs, are in trouble. You don't want to give up a job to go to a place that will be out of business or doing another round of layoffs as soon as you start.
  • Indentured servitude: Some companies have little or no work-life balance. They think salaried employees=indentured servants, and should be working 24/7. This is a great way to burn people out quickly.
  • Poor hiring: If many people are let go because they "aren't a good fit," then poor interviewing, poor background checks, poor job descriptions, or other poor hiring processes might be the cause.
  • Poor management: Ignoring staff, providing no growth opportunities, giving little feedback, messing with or freezing pay and benefits, credit hogging, general chaos, all can lead to people leaving in droves.

These are just a few reasons why an employer might have high turnover. Avoid employers with high turnover like the plague. Do your due diligence. Ask about your predecessors. How many people have held the position in the past 10 years? The past 5? What happened to them and why? Ask similar questions about the staff in your department and upper management. Check Glassdoor. Ask around in the industry.

No matter how much an employer tries to sweet talk, explain away, or convince you things will be different, don't fall for it. You won't be any different from the ones before you. I run into people who think they're superstars and it won't happen to them, or who fall for b.s. lines from bad employers. Or they think the job is too good or too prestigious to pass up (think White House or Cabinet).

So if the White House calls, don't be a sucker. Keep on looking.

Tuesday, March 6, 2018

Inclusion Riders Are A Good Idea In All Types Of Employment Agreements

Frances McDormand made an impassioned plea during her Oscar speech for more diversity. She mentioned the term, "inclusion rider" at the end of her speech. So what is an inclusion rider, and can it be used in non-Hollywood employment agreements?

The idea of the inclusion rider is that stars with lots of negotiating power can help those with little or now power by protecting them in the stars' contracts. So including things like equal pay for costars, diversity in cast and crew, and other clauses to protect coworkers can bring about change in Hollywood.

But would it work in other employment agreements?

I think that it could work for folks who are highly sought-after and who have lots of leverage to negotiate. While those people are rare, they do exist. If you have special skills or recognition in your industry that make you a desirable property, then you could put your money where your mouth is and negotiate to protect your coworkers.

Here are some things you could demand to be added to your employment contract if you are one of the superstars with leverage, and that could make a huge difference in workplace fairness:

  • Diversity: While you probably can't demand any particular percentage of racial, gender, LGBT, disability or other diverse employees, because that would also be discrimination, what you can do is demand that your employer recruit in places that provide a more diverse pool of applicants. Recruiting at colleges? Include those schools with a majority of minority students. Placing ads? How about placing ads with AARP, NAACP, and other organizations that have diverse members in addition to the ones in more traditional media?
  • Noncompetes: You can negotiate to not have a noncompete in your own contract, but what about your team? You can insist on a clause in your agreement that noncompetes won't be imposed on your coworkers.
  • Fair pay: What about a clause that requires pay to be reviewed for your colleagues annually and compared to similar positions in the industry? That requires all colleagues holding the same job title and seniority be paid the same? Prohibiting inquiries about prior salary in job interviews?
  • Sexual harassment: You could force the company to take sexual harassment complaints seriously. Include a clause that people making a harassment complaint will be entitled to a full investigation, including interviews of the accused harasser's former subordinates/coworkers. State that the victim will be entitled to be told the full results of the investigation and what, if any, steps the employer took to make sure the harassment won't recur. Include that any retaliation, including ostracism, transfers, demotions, firing, harassment of the victim will result in swift punishment.
  • Bullying: Make them adopt and enforce a policy of zero tolerance for bullies. That alone would make a huge difference in your new corporate culture.

These are just a few possibilities. Get creative. So, what issues are important to you? If you talk the talk of diversity and inclusion, and if you are a superstar with negotiating power (don't even try this if you're an entry level worker or someone with no leverage), then you can put your money where your mouth is and negotiate a contract that makes sure your coworkers have fair treatment at work. Wouldn't that make your workplace so much better?