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 11, 2019

Finally, One City Goes After Thieving Employers

I've done a few posts about the criminalization of employment law, and in those posts I've asked why it's all one-sided. Employees are going to jail for alleged trade secret theft, accessing employer computers once they're fired, and a host of other offenses. Yet employers who steal from employees and who commit other crimes against employees largely escape.



Well, one city has had enough. Philadelphia now has a unit in the DA's office just for prosecuting crimes against employees. The big focus is wage theft, but I'm betting they will get all kinds of crimes they can prosecute, like assault and battery, theft of personal items, antitrust violations if they have a state antitrust law, and other criminal violations.

It's about time. When will other cities and states prosecute employers for breaking the laws with respect to employees? Stay tuned.

Friday, October 4, 2019

Is EEOC Turning Down New Charges of Discrimination?

I've heard from multiple different clients and potential clients that they've contacted Miami EEOC and were either turned away or were unable to get an appointment. Some were told on the phone that EEOC is not taking new cases. Others filled out the form online and the next step is to set an appointment. But when they click on the next step they are unable to get an appointment.

WTH?

Filing a charge of discrimination is required before filing a charge of discrimination. In Florida, it must be filed within 300 days from the date of discrimination. In other states it's either 180 or 300 days. If EEOC is refusing to allow folks to file charges, that means workers who were subjected to discrimination may not be allowed to file a discrimination lawsuit.

Sure, the Supreme Court recently ruled that filing a charge with EEOC is not jurisdictional, meaning that the lack of a charge doesn't automatically mean the courts can't hear the case. But the Supremes also said, "EEOC charge-filing is still a mandatory prerequisite to filing suit and remains a procedural step that a court must enforce if the issue is timely raised . . . ."

I'm sure hoping that the folks telling me that EEOC is refusing to allow them to file charges of discrimination have somehow misunderstood, but I've heard it enough in the past couple weeks to think a pattern is developing.

If filing a charge of discrimination is still a "mandatory prerequisite to filing suit," then EEOC needs to take all charges that workers want to file. Otherwise, it is preventing people from pursuing their legal remedies for race, age, sex, national origin, pregnancy, disability, color, religious, and other discrimination cases.

I hope this is not a new anti-employee policy implemented by this administration to prevent workers from exercising their rights. Say it ain't so EEOC!

Friday, September 27, 2019

Make Less Than $35,568? Starting January 1, You Get Overtime

The Department of Labor has just raised the minimum amount employees must make to be considered exempt for overtime, from $23,660 to $35,568, starting January 1. You still have to also meet one of the exemptions, such as administrative, professional, executive, computer professional, or outside sales, and still have to be paid on a salary basis rather than hourly.

This new rule will add about 1.3 million workers to the employees entitled to be paid overtime if they work more than 40 hours/week. So yay!

Here's DOL's summary of the rule's effects:
  • raising the “standard salary level” from the currently enforced level of $455 per week to $684 per week (equivalent to $35,568 per year for a full-year worker);
  • raising the total annual compensation requirement for “highly compensated employees” from the currently enforced level of $100,000 per year to $107,432 per year;
  • allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) paid at least annually to satisfy up to 10% of the standard salary level, in recognition of evolving pay practices; and
  • revising the special salary levels for workers in U.S. territories and the motion picture industry.
While this is good news, I'd note that President Obama was going to raise the amount to $47,000, but this administration stopped that from happening. So if you make between $35,568 and $47,000, you should reflect your displeasure when you vote next year.

This new rule won't be automatically increased for inflation, so it may be decades before we seen another increase. Enjoy it while you can.

Thursday, September 19, 2019

More States Fight Back On Low Wage and Surprise Noncompetes

Once legislators woke up to the fact that employers were running amok with noncompete agreements, imposing them on sandwich makers and other low-level employees, some states took action. Here are some new state laws that limit noncompete agreements:
  • MaineThe Act to Promote Keeping Workers in Maine, which went into effect this week, bans no-poach or non-solicitation agreements with other employers; prohibits noncompetes for employees earning at or below 400% of the federal poverty level, mandates pre-employment disclosure of non-compete agreements; says non-competes can't take effect until after one year after the employee is hired or 6 months after the employee signs the agreement, whichever is later; and imposes $5000+ fines for violations.
  • New Hampshire: New Hampshire already required employers to provide a copy of a required non-compete agreement to potential employees before the employee accepted any offer of employment. Starting September 8, NH employers can't force low-wage employees, meaning “an employee who earns an hourly rate less than or equal to 200 percent of the federal minimum wage,” to sign noncompetes.
  • Rhode Island: The Rhode Island Noncompetition Agreement Act, signed in July, and going into effect next year, will bar employers from entering into or enforcing noncompetes with hourly employees, undergraduate or graduate student interns, employees 18 or younger, and low wage employees (those employees whose annual earnings are not more than 250% of the federal poverty level).

Michigan has a bill working its way through the legislature limiting noncompetes. So do Vermont and Pennsylvania.

If you think sandwich makers and other low wage employees shouldn't be prohibited from moving on to better paying jobs, and that employers shouldn't be able to surprise new employees with noncompetes after they start, tell your state legislators to get with it and join the pro-employee movement banning low wage and surprise noncompetes.


 




Sunday, September 1, 2019

You Don't Have To Work In Dangerous Post-Hurricane Conditions

After a storm, I usually get lots of calls and emails about employers making employees work in conditions they deem unsafe so I thought I'd repost this for those affected by Dorian. In general, you don't have to work in unsafe conditions. Here's what OSHA says about workplace safety:
You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.
OSHA also has a flyer about safety during disaster cleanup here. Some basic safety rules:
  • Keep an adequate amount of clean water for drinking.
  • Make sure workers are trained to do any complex or hazardous tasks.
  • Provide the proper equipment such as gloves, respirators, boots, lifting equipment and eye protection.
A host of other specific fact sheets are here. Some particularly useful ones for hurricanes are:
Bottom line for employers is: don't be stupid. Don't have employees in business attire climbing ladders and removing debris. Make sure employees are properly dressed. Don't cheap out and try to use your clerical employees to move downed trees or work around downed power lines. The lawsuit you will face when someone is seriously injured or killed will cost you way more than hiring the correct folks for the job.

The worker's page for reporting problems and with more resources is here.

By the way, if your "exempt" employees are doing debris removal or other scut work, they probably aren't exempt from overtime for that work. But that's another issue for another day.

Friday, August 30, 2019

If My Office Is Closed Due To Hurricane Dorian, Do I Get Paid?

It's that most awful time of the year, that is, time to re-run this popular and necessary column. I hope you make out okay in Hurricane Dorian and suffer no damage. However, you may be wondering if you're getting paid.


Whether you’re entitled to be paid when the office is closed depends on whether you are “exempt” salaried or not. Just being salaried doesn’t necessarily mean you aren’t entitled to overtime. It’s possible to be salaried and still non-exempt from the requirements of the Fair Labor Standards Act. Many employers misclassify employees as exempt to avoid paying overtime. If you work more than forty hours per week, it’s better to be non-exempt. But in the case of weather and emergency closings, it’s probably better to be exempt.

Exempt employees: If you’re exempt and you worked any portion of the work week, you have to be paid your entire salary, whether or not the office is closed for a natural disaster such as hurricane, snow, tornado, or flood. Further, Department of Labor regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” This would include natural disasters, so if you are able to work after a storm then you must be paid even if you didn’t work any portion of the week. If you can’t get there on time or have to leave early due to the flooding but the office is open, they can’t deduct for any partial days you worked.

Vacation time and PTO: Your employer can deduct from your vacation time or PTO for the time taken. However, if you have no accrued vacation or PTO time available, they still can’t deduct from your pay if you’re exempt.

Non-exempt employees: If you are non-exempt, then your employer doesn’t have to pay for the time the office is closed. However, if your company takes deductions and you’re a non-exempt salaried employee it may affect the way overtime is calculated.

Who Is Exempt?: You’re not exempt unless you fall into very specific categories, such as executives, administrative employees, or learned professionals. Plus, your job duties must fall within those categories, not just your title. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This is one of those rare times when it's better to be exempt, so it's the one time you can be glad that President Obama's overtime expansion was gutted.

Pay For Reporting To Work: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. Florida has no such requirement (so maybe it’s a good time to start complaining to your legislators). If it veers nortn, South Carolina has some protections for state employees but none that I've found for private sector employees.  North Carolina does have a law regarding employer adverse weather policies (they aren't required to have them though):
If an employer does establish an adverse weather condition policy, then pursuant to N.C.G.S. §95-25.13(2), the employer must: "Make available to its employees, in writing or through a posted notice maintained in a place accessible to its employees, employment practices and policies with regard to promised wages." The employer must comply with its own adverse weather policy until such time as the employer changes its policy in writing, notifies its employees of such changes prior to the effective date, and does not take away retroactively any benefits already earned, pursuant to N.C.G.S. §95-25.13(3).

Disaster Unemployment Benefits: If your state is declared a disaster, you may qualify for disaster unemployment assistance. If your state gets hit, here's where to start searching to see if you can get disaster unemployment assistance.

If you’re hit with a big storm, get in touch with your supervisor or manager as soon as possible to find out whether or not you’re expected to be at work. If you can’t get in touch with anyone, then only go in if it’s safe for you to do so.

Tuesday, August 27, 2019

Clearing Up 10 Common Misconceptions About Employment Law

I'd like to quickly clear up some common misconceptions about employment law:

  1. Breaks: There is no federal (or Florida) law requiring breaks for adult employees.
  2. Reason for firing: No, your employer doesn't have to give you a reason for firing you in Florida or most states. Some states do require that employers give a reason in writing, but it's not the majority. The good news is the failure to give a reason could prevent them from getting a summary judgment based on having a legitimate reason to fire you.
  3. Right to work: Right to work does not mean that noncompete agreements can't be enforced. It has absolutely nothing to do with noncompetes. It has to do with whether you have to pay union dues to work in a union workplace. It is a measure meant to weaken/destroy labor unions.
  4. Harassment: Bullying, harassment and hostile environment are not illegal in any state but Tennessee, and that's only for government employees. Hostile environment or harassment is illegal if it is because of race, sex, age, national origin, disability or other protected class.
  5. Retaliation: If you complain about bullying or hostile environment that isn't due to a protected class, you aren't legally protected against retaliation.
  6. Noncompete agreements: Noncompetes are frequently enforced in Florida. It's one of the most anti-employee states in the nation. Stop telling people noncompetes are never enforced here. Seriously.
  7. Firing: Yes, your employer can fire you over the phone or by text. There is no law saying it has to be done in person or with an HR person present. There is no particular way an employer has to fire you unless you have a contract saying otherwise.
  8. Unfair treatment: Yes, your employer can be arbitrary. They don't have to treat everyone the same. They can be jerks. What they can't do is treat people differently due to age, race, sex, national origin, disability or other protected class.
  9. Doctor's note: Yes, you can be fired for missing work even if you have a doctor's note. Unless you are covered by FMLA (worked at least a year, employer has at least 50 employees, absence for serious medical condition) or the absence relates to a disability, you can be fired for missing work when you're sick.
  10. FMLA and vacation/sick time: Don't wait until you use up your sick or vacation time to put in for FMLA. They go hand in hand. If you have accrued paid time off, then your FMLA is paid. Otherwise, it is unpaid. 
These are not by any means all the misconceptions I encounter about my area of practice, but they are some recent ones. Bottom line is don't listen to your non-lawyer friends when they opine about your legal rights. And frankly some non-employment lawyers get some of this stuff wrong (like the enforceabilty of noncompetes and right to work). When in doubt, talk to an employment lawyer in your state about your rights.