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, June 5, 2015

Court Imposes FMLA Catch-22

If you arrive at a friend's house at 12:05 a.m. and leave 14 hours later, would you say you stayed overnight? Of course you would. It's common sense. But common sense is sadly lacking in employment law many times.

In a case where an employee faced a FMLA Catch-22, the Third Circuit said that an employee who arrived at the hospital before midnight but who was actually admitted after midnight didn't stay overnight, and so was not protected by FMLA.

Why is "overnight stay" important? Well, the FMLA statute itself says zero about overnight. It says:

(11) Serious health condition
The term “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves—
(A) inpatient care in a hospital, hospice, or residential medical care facility; or
(B) continuing treatment by a health care provider.

The regulations, though, say this:

§825.113 Serious health condition.
(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.
§825.114 Inpatient care.
Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity as defined in §825.113(b), or any subsequent treatment in connection with such inpatient care.
So, although the statute says "inpatient care," the regs say "overnight stay." Oy vey. Bottom line is that, at least in the 3rd Circuit, in order to be covered under FMLA for an inpatient stay, you must have been actually admitted (remember, many ER visits don't count as being "admitted," and you can be stuck there for many hours before being actually admitted, so too bad for you if the hospital has a busy night) in one calendar day and discharged in a different calendar day AND stay at least 8 hours once you're admitted.

You'd think being tortured in the hospital for 14 hours, plus however many hours it took them to admit this poor employee would be enough, but no. And you'd think an employer wouldn't fire someone for being in the hospital, but no.

This is another example of how the laws fail employees on a regular basis.

Friday, May 15, 2015

San Francisco Enacts Employee Bill Of Rights - What Rights Would You Put In?

San Francisco's employees now have rights, at least in the retail sector. The city has enacted a Retail Workers'  Bill Of Rights that includes rights such as:
  • Offering extra hours to existing employees before hiring new employees or using subcontractors or temps;
  • New owners must retain existing employees for at least 90 days;
  • Provide a written estimate of the shifts and schedules employees will work before they start;
  • Post schedules 2 weeks in advance;
  • Provide advance notice of schedule changes and pay up to 4 hours for last minute shift cancellations;
  • Provide on-call pay for all on-call shifts, whether or not actually called into work;
  • Give part-time employees the same hourly rate and access to PTO as full-time employees.
While this is a good start, and should help those in the retail sector, what about other employees? In states like our pro-employer state of Florida, we need our own bill of rights for employees. Here's some of what I'd put in a Florida Employees' Bill of Rights:
  1. True right to work: No restrictions on working for competitors. Instead, the restrictions would only be on stealing trade secrets.
  2. My free time is my own: No monitoring of employees when they're off the clock, and no firing employees for legal off-duty activities.
  3. Right to work in peace: Bullying doesn't belong in workplaces any more than in schools. Zero tolerance for workplace bullies.
  4. Right to reasonable breaks: Right now we have zero laws that require any work breaks in Florida. It's time we give employees reasonable rest and meal breaks.
  5. Right to a copy of anything you sign: If your employer makes you sign a warning, policy or contract, you should be provided a copy the same day you sign and anytime you request it.
  6. Fair time to review contracts: Prospective employees should be provided copies of any and all contracts and agreements they will be expected to sign before they accept the offer. 
  7. Consideration for contracts: Ban all sign-or-be-fired contracts and instead require reasonable consideration for any employment contract.

So, what would you put in your employee bill of rights? 

Friday, May 8, 2015

What Did The Florida Legislature Do For Employees? Diddly squat, with one silly exception

I previously wrote about a plethora of bills our legislators filed that might help employees in our anti-employee state. 

Pregnancy:  This is the one silly exception to the utter lack of pro-employee bills by the legislature. It adds "pregnancy" to the list of prohibited types of discrimination under the Florida Civil Rights Act. Only problem is that the Florida Supreme Court already decided pregnancy was protected. Why was the bill necessary? No idea. Here's where it stands as of this writing:

SB 982: Florida Civil Rights Act

GENERAL BILL by Thompson ; (CO-INTRODUCERS) Smith ; Gibson
Florida Civil Rights Act; Prohibiting discrimination on the basis of pregnancy in public lodging and food service establishments and in places of public accommodation; prohibiting employment discrimination on the basis of pregnancy; prohibiting discrimination on the basis of pregnancy by labor organizations, joint labor-management committees, and employment agencies, and in occupational licensing, certification, and membership organizations, etc.
Effective Date: 7/1/2015
Last Action: 5/7/2015 - Signed by Officers and presented to Governor
Location: Presented to Governor
Kudos to all the legislators who at least tried to do something to help Florida's hardworking employees (their names are here if you want to thank them for their efforts). Here's what the legislature's website says happened to the rest of the pro-employee bills (hint: unless it says it was presented to the Governor or the Governor signed it, it's dead):


HB 455 - Labor Regulations

General Bill by Campbell
Labor Regulations: Designates act as "Florida Overtime Act of 2015"; revises number of hours of labor that comprise legal day's work; revises rates of overtime compensation for labor performed in excess of certain of hours of work; provides that commuting to & from certain locations is not part of day's work; prohibits employer from requiring employee to continue working after employee's shift under certain circumstances; prohibits employer from paying employee for less than amount of contracted hours worked by employee; provides penalties; provides that act does not affect employer's liability under Workers' Compensation Law.
Effective Date: July 1, 2015
Last Event: Withdrawn prior to introduction on Tuesday, February 10, 2015 3:03 PM
 SB 890 - Labor Regulations

General Bill by Bullard
Labor Regulations: Revising the number of hours of labor that comprise a legal day’s work; prohibiting an employer from requiring an employee to continue working after the employee’s shift under certain circumstances; prohibiting an employer from paying an employee for less than the amount of contracted hours worked by the employee; providing penalties; providing that the act does not affect an employer’s liability under the Workers’ Compensation Law, etc.
Effective Date: 07/01/2015

Last Event: 02/27/15 S Withdrawn prior to introduction -SJ 93 on Friday, February 27, 2015 2:48 PM
Sick Time:

SB 1490 - Labor Regulations

General Bill by Thompson
Labor Regulations: Requiring certain employers to provide employees with earned sick and safe leave under certain conditions; providing employer and employee requirements; authorizing an employee to file a civil action under certain conditions; providing penalties, etc.
Effective Date: 07/01/2015

Last Event: 03/03/15 S Introduced -SJ 138 on Tuesday, March 03, 2015 9:31 PM

HB 589 - State Minimum Wage
          General Bill by Jacobs (CO-SPONSORS) Pafford
State Minimum Wage: Prohibits employer or any other party from knowingly procuring labor from any person with intent to defraud or deceive such person; provides penalty.
Effective Date: July 1, 2015
Last Event: 1st Reading on Tuesday, March 03, 2015 10:37 PM

SB 892: Safe Work Environments

Safe Work Environments; Citing this act as the “Safe Work Environment Act”; providing that subjecting an employee to an abusive work environment is an unlawful employment practice; prohibiting retaliation against an employee who has opposed any unlawful employment practice or who has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding concerning such a claim; limiting an employer’s liability for emotional distress and precluding punitive damages in certain circumstances, etc.
Effective Date: 7/1/2015
Last Action: 3/3/2015 Senate - Introduced -SJ 93
Location: In committee/council (CM)

HB 297 - Safe Work Environments

General Bill by Campbell
Safe Work Environments: Creates "Safe Work Environment Act"; provides that subjecting employee to abusive work environment is unlawful employment practice; prohibits retaliating against employee who has opposed any unlawful employment practice, or who has made charge, testified, assisted, or participated in any manner in investigation or proceeding concerning such claim; provides for vicarious liability for employers in certain circumstances; provides defense; provides for liability for individual employees in certain circumstances; provides defense; provides affirmative defenses; specifies relief available; limits employer's liability for emotional distress & precludes punitive damages in certain circumstances; specifies that provisions may only be enforced by private right of action; provides time limitation on actions; provides that remedies provided shall be in addition to & not in place of other remedies provided in law; provides for screening certain persons public & private school entering instructional areas.
Effective Date: July 1, 2015
Last Event: 1st Reading on Tuesday, March 03, 2015 10:37 PM

Domestic violence and unemployment:

SB 1096: Unemployment Compensation
Unemployment Compensation; Clarifying application of a provision relating to disqualification for benefits; providing that certain victims of domestic violence may not be disqualified for benefits for voluntarily leaving work, etc.
Effective Date: 7/1/2015
Last Action: 3/3/2015 Senate - Introduced -SJ 108
Location: In committee/council (CM)
Intern sexual harassment:

HB 433: Employment Discrimination
Employment Discrimination; Includes unpaid interns within definition of term "employee" for purposes of Florida Civil Rights Act of 1992.
Effective Date: 7/1/2015
Last Action: 3/3/2015 House - Introduced -HJ 37
Location: In committee/council (CJS)
Fair pay:

SB 98: Employment Discrimination

GENERAL BILL by Joyner ; (CO-INTRODUCERS) Sachs ; Soto
Employment Discrimination; Creating the Helen Gordon Davis Fair Pay Protection Act; recognizing the importance of the Department of Economic Opportunity and the Florida Commission on Human Relations in ensuring fair pay; creating the Governor’s Recognition Award for Pay Equity in the Workplace; requiring that the award be given annually to employers in this state which have engaged in activities that eliminate the barriers to equal pay for equal work for women, etc.
Effective Date: 7/1/2015
Last Action: 3/3/2015 Senate - Introduced -SJ 39
Location: In committee/council (CM)

Increase state minimum wage:

HB 47 - State Minimum Wage

General Bill by Stafford (CO-SPONSORS) Cortes, J.; Watson, B.; Watson, C.
State Minimum Wage: Increases state minimum wage; provides that an employer may not pay employee at rate less than state minimum wage; deletes requirement that only individuals entitled to receive federal minimum wage are eligible to receive state minimum wage.
Effective Date: January 1, 2016
Last Event: 1st Reading on Tuesday, March 03, 2015 10:37 PM

Social media privacy:

SB 126 - Social Media Privacy

General Bill by Clemens (CO-SPONSORS) Latvala
Social Media Privacy: Prohibiting an employer from requesting or requiring access to a social media account of an employee or prospective employee under certain circumstances; prohibiting an employer from taking retaliatory personnel action for an employee’s refusal to allow access to his or her social media account; authorizing civil action for a violation; specifying that an employer is not prohibited from seeking access to social media accounts used primarily for the employer’s business purposes, etc.
Effective Date: 10/01/2015
Last Event: 03/03/15 S Introduced -SJ 41 on Tuesday, March 03, 2015 7:55 AM
Ban the box:

SB 214: Discrimination in Employment Screening

GENERAL BILL by Clemens ; (CO-INTRODUCERS) Bullard ; Smith
Discrimination in Employment Screening; Prohibiting an employer from inquiring into or considering an applicant’s criminal history on an initial employment application unless required to do so by law, etc.
Effective Date: 7/1/2015
Last Action: 3/3/2015 Senate - Introduced -SJ 46
Location: In committee/council (CM)

Sexual orientation discrimination: This was the one bill I predicted might pass due to bipartisan support and support by major Florida corporations. It's DOA anyhow.

SB 156: Prohibited Discrimination

GENERAL BILL by Abruzzo ; (CO-INTRODUCERS) Bullard ; Ring ; Margolis ; Soto
Prohibited Discrimination; Creating the “Florida Competitive Workforce Act”; revising provisions to include sexual orientation and gender identity or expression and the perception of race, color, religion, sex, national origin, age, sexual orientation, gender identity or expression, handicap, or marital status as impermissible grounds for discrimination; adding sexual orientation and gender identity or expression as impermissible grounds for discrimination, etc.
Effective Date: 7/1/2015
Last Action: 3/3/2015 Senate - Introduced -SJ 42

Location: In committee/council (JU)

Friday, May 1, 2015

Supremes to Employers: No, We Won't Make EEOC Force You To Settle

In one of the most bizarre employer appeals I've ever seen, a company called Mach Mining asked the Supreme Court to dismiss a suit by EEOC because EEOC didn't engage in sufficient conciliation efforts. Conciliation is a fancy term for trying to settle a case. It's done after EEOC makes one of those rare findings of "cause" for a discrimination charge.*

That's right: this was an employer’s beef about EEOC not trying hard enough to make the employer settle. It was much ado about . . . well, not nothing, but certainly not much. While I’d have been happy if the Supremes had ordered EEOC to beat lawbreaking employers into settling with, say, a cat o’ nine tails, I didn’t expect them to do so.

The Supreme Court in Mach Mining confirmed what EEOC has been saying all along, namely, that the courts can’t involve themselves in the conciliation process. The Supreme Court did say that EEOC does indeed have to inform employers about the specific wrongdoing it has found and which employees suffered from the wrongdoing, and then try to engage the employer in a discussion to give the employer a chance to fix the problem. However, the sole remedy for EEOC’s failure to comply is to stay the proceeding and require EEOC to conciliate. So it will work similarly to a court ordering the parties to mediate before trial.

This makes perfect sense, since there is absolutely no realistic way for a court to decide if one party is being unreasonable in a settlement discussion. While EEOC has to try to get the employer to voluntarily comply with the law, the courts are not going to tell it how to accomplish that. Employers are calling it a "win," but it's mostly a big ball of nothing.

Employers should be really glad that the Supreme Court didn’t order EEOC to get more forceful with scofflaw employers.  Taxpayers and employees lose out when employers fail to conciliate reasonably and EEOC has to sue employers to enforce the law.

This case will have zero effect on employees who sue on their own. It only applies to cases where EEOC sues on behalf of employees. We already know that this is about as likely as getting hit by lightning. Bottom line: don't worry about it. It probably doesn't apply to your case or you.

* The alternative to a "cause" finding is NOT a "no-cause" finding, although this is what management-side lawyers like to call it. It's an "unable to determine" finding, saying that they can't determine one way or the other whether discrimination occurred, and they issue a right to sue letter.

Friday, April 24, 2015

Madison Enacts Law Protecting Atheists Against Discrimination (But Atheists Are Already Protected Against Religious Discrimination Under Title VII)

While the anti-discrimination ordinance enacted in Madison, Wisconsin adding “nonreligion” to the list of protected categories was touted as the first of its kind in the nation, that’s not quite true. While it may well be the first ordinance specifically protecting those who have no religion, there is already a federal law protecting atheists against work place discrimination.

Under Title VII, the federal employment discrimination law, atheists have long been considered to be protected under the prohibition against religious discrimination. That doesn’t mean there’s no need for laws specifically protecting atheists against discrimination.

Indeed, atheists are one of the most discriminated against groups in the U.S. and the world.

While it’s unconstitutional to impose a religious test on candidates, seven states still have laws on the books requiring candidates to have a belief in god. Even though these laws would likely not pass legal muster if challenged, it’s still almost impossible for a professed nonbeliever to be elected in the U.S. Voters would prefer Muslim, gay or pretty much anyone to atheist candidates. Like gays in the past (and some still in the present), many atheists are closeted to avoid the stigma of simply not believing what others believe.O

According to the American Humanist Association: About half of Americans would object to their child marrying an atheist, and only 33% would hire an atheist in a child care position. Thirteen countries revoke citizenship, deny marriage and even kill atheists.

Whether you like them or not, it’s illegal for employers to discriminate against atheists. Further, if an atheist asks for a religious accommodation like being excused from a religious invocation at the beginning of staff meetings, the employer must grant the accommodation.

If a believer of any religion proselytizes to an atheist employee and the atheist asks them to stop, continued proselytizing could be illegal religious harassment. If an atheist employer goes to HR and reports this kind of harassment, HR needs to treat it the same as any other kind of religious harassment and nip it in the bud.

The reason I think this ordinance is a positive step is that many employers don’t realize atheists are legally protected. I hear, “That’s not a religion,” all too often. At least in Madison, it will be clear to employers that they can’t discriminate against those with no religion.

If you think you’ve been discriminated against at work, contact an employment lawyer in your state about your rights. And you do have rights.

Friday, April 17, 2015

How To End Sandwich Noncompetes?: Tie Them To CEO Pay

Problem 1: CEO Pay Gap

CEO pay has been in the news a lot lately, and for good reason. CEOs make, on average, about 300 times what their average workers make. Hillary Clinton has made CEO pay part of her campaign. Where CEO pay jumped an average 13% in 2014, rank and file workers saw only a 2% average increase. Fast food CEOs make $5859/hour, while their rank and file suffer below the poverty level at minimum wage. The pay gap at Disney between the CEO and median worker wages is 2238 to one.

And then there's this guy, who slashed his $1 million/year salary at Gravity Payments to provide a minimum salary at his corporation of $70,000/year. If you have a chance to do business with Gravity Payments, do it please. Let's support a truly decent CEO.

Problem 2: Rise In Minimum Wage Noncompetes

The other trend I'm seeing is the drastic increase in noncompete agreements among low-level workers, highlighted by the infamous Jimmy John's noncompetes for sandwich makers. One in four Americans have signed a noncompete agreement at some time and 12.5% say they're bound by one now.

While noncompete agreements are supposed to prevent high level workers who have important company secrets from running off and selling them to competitors, what they're being used for now is to prevent competition and lower wages. Yes, that's illegal. It's called antitrust. But many judges are convinced by management-side lawyers to apply them lower and lower on the food chain despite antitrust laws.

My Proposal: Pay 'Em Or Let 'Em Go

So here's my thought. If a worker has truly valuable information the company doesn't want them to run off with, surely they're paid well, right? I mean, you wouldn't hand your secret recipe to the minimum wage janitor, would you? Well, if you do, you shouldn't. And companies shouldn't be able to force employees to keep working for them when they don't pay them fairly.

My proposal is simple.Why not, in addition to saying noncompetes are only to protect valuable secret information, tie their enforceability to CEO pay? I propose a law that says noncompetes are not enforceable against anyone who doesn't make at least half what the CEO or other highest paid employee makes. Pay them handsomely to keep secrets and not work for a competitor, you get to force them to do so. Don't want to pay them? Let them go to a competitor and make a living elsewhere.

Maybe if noncompetes are tied to CEO pay, corporations will think twice about letting CEO pay run amok at the expense of rank and file workers.

Friday, April 10, 2015

How Not To Screw Up Your Severance Negotiation: Underbidding

So you've decided to negotiate your own severance package. If you're an experienced negotiator like a salesperson or mediator, then maybe you can handle it without screwing up. But if you aren't, then you may make some big mistakes. I thought I'd talk today about one of the worst mistakes you can make: underbidding.

Let's say you're fired or laid off and you are handed a severance package for 8 weeks of severance. You don't think. You run into HR and say you won't sign unless they give you 12 weeks. Done, they say.

But then you go home and think about it. You realize that you were let go a week after you reported age discrimination. Or you take a look at who else was targeted and it's everyone who had signed a petition to get management to raise wages. You have potential claims, and that means leverage. So you go see an employment lawyer.

Normally I'd tell you that I think you have leverage to ask for more, but you did ask for more, told them what you wanted, and they gave it. Now you've come to me to see if I can ask for even more.

I can tell you right now that this employer is almost certainly not going to negotiate any further with you or me. They gave you what you asked for. As they see it, if they give more, you'll keep asking for more. You underbid. You screwed up.

Or maybe they didn't accept your number, and you go to a lawyer to try to ask for more. Even then, most employers (and their lawyers) won't start a negotiation over what you last asking price was. Underbidding can cost you.

Here's what you should have done:

  1. Take the proposed agreement home and read it carefully, and if you don't understand it take it to a lawyer.
  2. Think about what potential claims you have against the employer. Did they fail to pay overtime? Discriminate based on age, race, pregnancy, sex, national origin or other protected category? Fire you right after you objected to something they were doing that was illegal? If so, write it down and take it to a lawyer along with the agreement.
  3. Don't try to negotiate for yourself if you aren't an experienced negotiator.
  4. Don't try to negotiate when you're still in shock from being told you don't have a job, no matter how much experience you have.

If you realize you underbid, then you'll likely have to pursue your legal remedies if you want to take the matter further. Whether that's filing with EEOC or NLRB, suing or filing a wage theft claim, you have to be ready to pass on what they've offered and take your chances with a legal case if you really think you asked for too little.

Only in the most exceptional circumstances, like discovering that they let everyone over 50 go or finding a smoking gun, will you be able to bring the employer back to the table if you underbid.

"He who represents himself has a fool for a client." Abraham Lincoln.