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, 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?

Friday, August 29, 2014

States With Pro-Employee Laws: No At-Will Employment Equals Fewer Employee Suits

(Or, States That Don't Suck For Employees, Part II)

I was doing some research for this series on pro-employee state laws and ran across a piece by that bastion of liberalism, the U.S. Chamber of Commerce rating states either Good, Fair or Poor for employers. It's been a fantastic source of information for my upcoming pieces in this series, since all I have to do is look for the "Poor" rated states to find a rant about their pro-employee laws.

What I found most interesting, though, was what they wrote about Montana. Montana is notable as the only state in the nation that requires just cause for employers to terminate employees. It's the only non-at-will state, which is something I frequently mention when I write or speak about employment law. Almost as an afterthought, the U.S. Chamber says this about Montana:

The state is also among the nation’s leaders in the fewest number of labor and employment lawsuits filed per 10,000 employees.
Really? So not only did Montana not fall off the map under the weight of employee suits by employees claiming they weren't fired for just cause, but they have fewer employee suits than places like Florida that it rates "Good" for employers due to the utter lack of pro-employee laws. Here's what they say about supposedly pro-employer Florida:

Perhaps the most surprising element of Florida’s generally favorable labor and employment-law climate is its litigation problem. The state has an extraordinary number of labor and employment related lawsuits, with 5.69 such lawsuits filed per 10,000 employees. Only Alabama has a higher ratio.
Alabama, by the way, is also rated "Good" for employers.

Hmm. So states that allow employers to be jerks to employees at-will have more employee suits, and states that make employers treat employees decently have few employee suits. Coincidence? I think not. I think if you treat a person decently they're much less likely to sue you. Doctors have found that out, so when will employers learn?

Treating employees like stuff at the bottom of your shoe equals more lawsuits. Treating employees will and firing only for just cause equals fewer lawsuits.

Are any legislators listening?

Friday, August 22, 2014

States With Pro-Employee Laws: Discrimination Against Unemployed

(Or, States That Don't Suck For Employees)

I have the sad duty of informing my clients pretty much daily just how bad Florida law is for employees. It's pretty depressing how few legal protections my home states offers employees. So I thought I'd periodically celebrate some states that actually have laws protecting employees. Today, I'm celebrating the states that have enacted laws protecting the unemployed from discrimination.

During the not-so-Great Recession, some help-wanted ads started popping up saying only those already employed need apply. While it had always been illegal to discriminate against the unemployed, going this blatant backfired on employers. Public and media outrage ensued and New Jersey became the first state to make it illegal to discriminate against the unemployed. 

New Jersey's law actually only makes it illegal for employers  to advertise that they'll only hired the employed, but doesn't make it illegal to refuse to hire the unemployed, and prospective employees can't sue for violations. Still, it's an improvement. At least the long-term unemployed don't have to see their plight in print when looking through the classifieds.

Oregon, DC and Chicago soon followed with similar legislation that prohibited advertising but not actual refusal to hire the unemployed. A number of states tried and failed to pass legislation prohibiting unemployment discrimination.

Along came New York, a city that never sleeps on worker rights, and passed a law not only prohibiting unemployment discrimination but allowing aggrieved applicants to file a complaint with the city's Commission on Human Rights or sue, including bringing a class action. Madison, WI has also passed a similar ordinance.

Not to be outdone, New Jersey legislators passed another bill, this one actually prohibiting using the fact of being unemployed in employment decisions, but Gov. Christie vetoed it. Federal legislation proposed to help protect the unemployed against discrimination failed.

Why should all taxpayers push to make unemployment discrimination illegal? Because we have a huge problem with long-term unemployment, and it is getting worse. If you've been unemployed 6 months or more, your chances of getting a job drop drastically. Who bears the brunt of this? Taxpayers. As these folks lose their homes, file for bankruptcy, and apply for public assistance, we're paying for this employer nonsense. 

Can anyone show me a single data point saying being unemployed has anything at all with a person's ability to do a job? How is this the unemployed person's fault? Why should we, as taxpayers, have to pay for hiring managers' wild hair idea carried over from their middle school days that a person is only worthwhile if someone else has them?

Kudos to the states and cities that have passed laws to help their citizens with this employer-created problem. Will my home state and other states that allow employers to trash their economies with this nonsense wake up?

Friday, August 15, 2014

"Jail 'Em" Says Pennsylvania Senator About Employers Who Misclassify

I've written here recently about the one-sided Criminalization of Employment Law. It seems that employees are getting tossed in jail while scofflaw employers sail off in their yachts laughing at the 99%. Well, at least one state Senator is doing something to balance things out.

Senator Mike Stack has proposed a bill in Pennsylvania to toss employers who misclassify employees in jail. Employers who declare employees to be independent contractors are illegally avoiding paying worker's compensation premiums, overtime and employment taxes, and at least Senator Stack is doing something about it.

Pennsylvania already has a law, as do many other states, providing civil penalties to employers who misclassify, but it isn't working. Employers are wiping their collective you-know-whats with this law and the Fair Labor Standards Act. Some states have cut deals with the Department of Labor to help enforce these laws. However, Pennsylvania reports that only 1/3 of pending cases have been resolved.

This new proposed law will allow prosecutors to step in and press criminal charges against recalcitrant employers. Stack said this about the need for the law: “Pennsylvania’s record of enforcement is a disservice not only to working families, but also to every taxpayer in the state. Federal officials understand that misclassification of workers means payroll taxes are not withheld, resulting in reduced tax collections. Everyone pays while a few benefit.”

While some state and local governments have passed wage theft laws cracking down on nonpayment of wages, wage theft remains rampant. Some municipalities have tried to deny licenses to thieving employers. Some states are finally passing laws that allow prosecution of wage thieves, but they're a small minority. There have been some prosecutions, but employers landing in jail are few compared with employees being prosecuted for trade secrets, eating cookies, blowing the whistle, and being disloyal.

This proposed bill in Pennsylvania may help balance the equities. After all, it hurts legitimate businesses, taxpayers and voters to have employers running around evading taxes, injuring employees without having insurance, and not paying wages. Will legislators in other states (yeah, I won't hold my breath in Florida) follow suit? Will we finally start demanding these corporation-persons be held accountable for their misdeeds?

Stay tuned.