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, November 21, 2014

Why You Probably Aren't Getting A $186 Million Check If You Sue Your Former Employer

If you're contemplating bringing a discrimination case against your former employer, you've probably been scouring the Internet for information. You also probably found the recent case where an employee who was the victim of pregnancy discrimination won a $186 million verdict against her employer. You may be seeing dollar signs. Surely your case is worth at least that much.

Or not.

Let's do a reality check. Here are just some of the many reasons why you probably aren't going to end up with a $186 million check from your former employer if you sue:

  • Your bosses didn't conspire to fire all the women: While the case had a single plaintiff, the evidence included testimony of a conspiracy to fire all the women. An interesting quote from the story about the case: "'Specifically, it was said to this district manager, women weren't worth a (expletive) to AutoZone. He was offered a promotion if he fired all the women at his stores,' said attorney Lawrence Bohm."
  • Your company probably didn't celebrate not having to promote women anymore: Another interesting part of this story is that the company had been under a settlement agreement that had just expired. "During the trial, her lawyers called a former district manager – an ordained minister – who described a meeting with high-level executives rejoicing over the expiration of a previous settlement agreement requiring AutoZone to promote women and track it."
  • There's no way this employee is getting a $186 million check: Sure, the verdict is nice. But the judge can reduce the judgment, and likely will. Then there are appeals where all or part of the verdict can get reversed. Even if all goes well, the company could go bankrupt or be uncollectable. If she wants to avoid years of appeals, she might settle. And let's not forget what is likely a 40% or so attorney fee, costs, and taxes.
  • You probably don't want to be in court for 8 years: She was demoted in 2006 and then sued. She was fired in 2008. I don't know about you, but if she was unemployed or underemployed for 8 years, that's an extreme hardship. Do you have the will and the patience to go back and forth to depositions, hearings and a trial for 8 years? What about 2 - 3 years of appeals, or more? Do you have the ability to pay the costs of court reporters, mediators, and other costs for 8 years of legal proceedings? Most people would say no to all these questions. 
  • Your facts are different: Every case is different. The facts of your case are different from everyone else's facts. Your witnesses and evidence are different. You can't compare yourself to the sky-high verdict cases that get all the big publicity. Most discrimination plaintiffs simply don't get that kind of money. 
  • You could lose: How risk-averse are you? Because nobody can guarantee what a judge or jury will do. You could get zero, or even end up paying the other side's fees and/or costs.
  • It was California: Unless you live in California, you won't get a California jury. California is unique in the level of workplace protections it provides. Jurors there are used to having rights. In most states, you'll have jurors who are resigned to having few workplace rights.

Going through a lawsuit is long, drawn-out and expensive. If you're thinking about suing, you need to prepare yourself realistically for what to expect, how long it will take, and that you could end up with nothing. I know it's fun to dream about lotto-sized verdicts, but talk to an employee-side employment lawyer in your state about your case to get a real assessment of your chances.

Friday, November 14, 2014

States With Pro-Employee Laws: Consideration For Noncompete Can't Be Continued Employment

Florida, like some other states, allow unscrupulous employers to present noncompete agreements to existing employees and say, "Sign or be fired." What does the employee get for agreeing not to work for a competitor for a year or two? Continued employment. That's it.

The effects of this can be pretty devastating. Say you left your job for a better opportunity. You start the new job and then, whammo! You have to agree not to work in your industry for 2 years, all your contacts belong to the new employer, and they can fire you a week after you sign. Fair? Heck no. Legal? Yes, in most states.

However, there are some states that just say no to allowing continued employment to be the sole consideration for a noncompete agreement. Last week I talked about some states that even require advance notice, prior to employment, of the noncompete. This week I'll talk about those states that don't allow employers to demand a signature without some real consideration.

Hawaii, Kentucky, Minnesota, Montana, New Hampshire, North Carolina, Oregon, Pennsylvania, South Carolina, Texas, Virginia, Washington, West Virginia, Wisconsin, Wyoming say that continued employment alone is not sufficient consideration for a noncompete or nonsolicitation agreement. In those states, employers must offer something extra, like specialized training, a promotion, a raise, a change to non-at-will status or other consideration for the noncompete or nonsolicitation agreement.

In Illinois, employees must be employed at least two years for continued employment to be valid consideration for a noncompete agreement.

There's a pending case in Wisconsin that will decide the issue. In Alaska the issue is still undecided.

As you can see, state law varies wildly (and it changes constantly). Talk to a lawyer who handles employee-side employment law in your state to find out whether or not your noncompete agreement is enforceable.

If your state is one of those that allows employers to walk in one day and demand a signature upon pain of firing, maybe it's time to talk to your state legislators about why they aren't protecting employees in your state.

Friday, November 7, 2014

States With Pro-Employee Laws: Advance Notice Of Noncompete Agreement

In most states, like my home state of Florida, employers can present employees with a noncompete agreement and demand it be signed on the spot. In states like Florida where continued employment is allowed as valid consideration for a noncompete agreement, there can be an obnoxious situation where an employee quits a job, and then, only after starting work, is handed an agreement and told to sign or be fired. The agreement might say they can't work in their industry for a year or two after they leave. At that point, the employee has little choice. They sign and are then fired a few months later and the burden is on the  taxpayers to pay out unemployment benefits and other government assistance because the employee can't get a job or even apply for one in their industry.

Fair? No. Legal? Yes, in most states.

There are some states that protect employees by requiring advance notice of a noncompete agreement. You'd think voters would rise up and demand such protection, but after this week's election results I guess I shouldn't be too surprised.

Here are some state laws that give protection to their citizens by requiring reasonable advance notice of a noncompete agreement:

Oregon: Oregon's statute § 653.295 says:

(1)A noncompetition agreement entered into between an employer and employee is voidable and may not be enforced by a court of this state unless:
(a)(A) The employer informs the employee in a written employment offer received by the employee at least two weeks before the first day of the employees employment that a noncompetition agreement is required as a condition of employment; or
(B)The noncompetition agreement is entered into upon a subsequent bona fide advancement of the employee by the employer.
 New Hampshire: New Hampshire's statute RSA 275:70 used to say: 
Prior to or concurrent with making an offer of change in job classification or an offer of employment, every employer shall provide a copy of any non-compete or non-piracy agreement that is part of the employment agreement to the employee or potential employee. Any contract that is not in compliance with this section shall be void and unenforceable.
          However, this year New Hampshire's legislature modified the law to say:
Any employer who requires an employee who has not previously been employed by the employer to execute a noncompete agreement as a condition of employment shall provide a copy of such agreement to the potential employee prior to the employee's acceptance of an offer of employment. A noncompete agreement that has not been disclosed to an employee as required by this section shall not be enforceable against the employee, but all other provisions of any employment, confidentiality, nondisclosure, trade secret, intellectual property assignment, or any other type of employment agreement or provision shall remain in full force and effect.

Connecticut's legislature passed a law that would require advance written notice that a noncompete would be required, but it was vetoed. Massachusetts tried to pass a law limiting noncompetes that would include an advance notice provision, but that effort failed. With a new governor of that state coming in soon, it's doubtful any limits will be passed anytime soon.

What's so unreasonable about giving advance notice that an employee is going to have to sign a noncompete agreement if they accept a job? Why don't other states pass laws preventing the "gotcha" that many employees face if they want to keep their jobs? Well, nothing will happen unless you stand up and fight for your rights. Unless voters demand change, most states will continue to allow this kind of employee abuse.

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.