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 13, 2017

Is It Time To Quit Your Job? There's No Shame In Ending A Bad Situation

Let's say you hate your job. Maybe you've told colleagues that your employer-provided house is a dump. You've opined that your job was like being in prison. The job is causing you so much stress that you're losing your temper a lot. Colleagues and friends are starting to recommend that you seek help from a mental professional. You're just not good at what you do.

Maybe it's time to call it quits. Not that I'm hinting to anyone in particular.

But seriously, how do you know when it's time to quit? What should you do when you figure out that it's time to go? Here are some things to think about before you hand in that resignation:

  • Will it be more stressful to be unemployed?: This is the first thing I ask clients who desperately want to quit their jobs. Sure, some jobs can be miserable. But is it more miserable than being unemployed for months or even years? Can you afford to live on Florida's measly maximum of $275/week in unemployment benefits? How stressed will you be when you file for bankruptcy, get evicted, lose your car? If the answer is that you'd rather go through all that than stay at the job, it's probably time to quit.
  • Can you afford to be unemployed?: If you have enough savings to last you for months, if you don't need the job, if your spouse or partner can support you, or if you already have another job lined up, maybe it's time to quit.
  • Have you started looking for another job?: If you haven't done your due diligence to find out how long it will take to find something else and how tough the market is, maybe you should start before you quit. Make a fully informed choice.
  • Is the job making you sick?: Some people work in miserable conditions to the point that they become physically or mentally ill. If it has come to the point that your doctor or mental health professional is telling you to get out for your health's sake, it's time to go. No job is worth dying or having a mental breakdown over. However, you might think about taking a FMLA or other leave if available to you so you can take a step back and make the decision in your own time.
  • Are you unsafe at work?: If you are being sexually harassed or harassed due to race, age, religion, etc., report it in writing to HR and give your employer a chance to investigate and fix the situation. However, if you are being physically attacked or threatened with bodily harm and the company won't remove the attacker, then you probably should not go back to an unsafe workplace. I do suggest you report any such incidents to the police and to HR before you let the attacker drive you out of a job.
  • You hate your job: If you hate your job, hate the people, hate the work, it will show. Rather than let your work performance slide and get fired, it's time to start looking elsewhere. Sometimes, the decision to leave will keep you going through a truly crappy job until you are ready to leave on your own terms.
  • You are terrible at your job: Sometimes, the job just isn't a fit. No matter how hard you try, you can't keep up, can't live up to expectations, or just don't have the skills or training necessary. If you've asked for training, done everything you could to get up to speed, then it's time to look elsewhere before you're given the boot. Try not to wait until you're given that PIP, final warning or severance agreement. If you know in your heart you aren't cutting it, then cut your losses.

There are lots of reasons to quit, but the timing is key. Quitting with little or no notice, with no job lined up, that's a pretty serious move. Be sure you have thought it through. If you're unsafe or it's unhealthy, then that's one thing. But otherwise, make your plan, do your job search and go when you're ready.

On the other hand, if you're a billionaire who doesn't need to think about mudane things like how to pay the mortgage, maybe quitting by tweet at 3 AM is the best thing. Hint, hint.

Monday, October 2, 2017

Job Or Self-Employment Lost Because Of Hurricane? You May Qualify For Disaster Unemployment Assistance

Folks who normally don't qualify for unemployment assistance, such as business owners, may qualify for Disaster Unemployment Assistance if they are unable to work due to one of the hurricanes that hit the U.S. Even if you only lost your job for a short time, you should look into this. It's your money, after all. This is part of what your payroll taxes have been paying for.

Here's what the Benefits.gov website says about who qualifies:
In order to qualify for this benefit your employment or self-employment must have been lost or interrupted as a direct result of a major disaster declared by the President of the United States. You must have been determined not otherwise eligible for regular unemployment insurance benefits (under any state or Federal law). 
Payment will be made to an unemployed worker, who as a direct result of a Presidentially declared major disaster: 
  • No longer has a job.
  • Is unable to reach their place of work.
  • Cannot work due to damage to the place of work.
  • Becomes the head of the household and is seeking work because former head of household died as a result of the disaster.
  • Cannot work because of a disaster-incurred injury.
You have to apply in the state/territory where you live. Each state/territory has its own site for applying.

To apply for Disaster Unemployment Assistance in Florida, start here. Here's the announcement about it. You only have until October 16 to apply. Florida's announcement says you qualify if you:
  • Worked or were self-employed or were scheduled to begin work or self-employment;
  • Are not able to work or perform services because of physical damage of destruction to the place of employment as a direct result of the disaster;
  • Can establish that the work or self-employment they can no longer perform was their principal source of income;
  • Do not qualify for regular unemployment benefits from any state;
  • Cannot perform work or self-employment because of an injury as a direct result of the disaster; or
  • Became the breadwinner or major supporter of a household because of the death of the head of household.
 Texas's announcement is here. You have until October 30 to apply. You can apply here.

Georgia's site for applying is here. You have until October 19 to apply. The announcement is here.

The list of disaster assistance available for Puerto Rico is here, and it includes disaster unemployment assistance. I haven't found any announcement yet. Deadline is 30 days from the announcement. Puerto Rico's unemployment compensation websites appear to be down, but a list of them is here.

The list of disaster assistance available for the U.S. Virgin Islands is here and it also includes disaster unemployment assistance. I haven't found the announcement yet. Deadline is 30 days from the announcement. USVI's unemployment compensation website is here.

Tuesday, September 19, 2017

OSHA Protects You From Dangerous Working Conditions Post-Hurricane

I'm getting lots of calls and emails about employers making employees work in conditions they deem unsafe. 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.

Monday, September 4, 2017

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

With Texas recovering from Harvey and Irma bearing down on Florida right now, I thought I'd re-run this popular and necessary column.

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 and neither does Texas, (so maybe it’s a good time to start complaining to your legislators).

Disaster Unemployment Benefits: If you live in certain counties in Texas, 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 or have already been 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.

Stay safe!

Friday, August 25, 2017

If Your Prospective Employer Has Lots Of Turnover, Think Twice

All the craziness and turnover at the White House has many Americans wondering what anyone joining the Administration is thinking. But I see it all the time. Folks either desperate for a job or getting an offer that's off the charts decide they can handle whatever a difficult employer throws at them.

They're wrong.

First of all, let's look at that off-the-charts offer. It sounds too good to be true, but you have an offer. They promise a contract is forthcoming but it never does. You still leave your job or move across the country for this great opportunity. If the contract didn't show up before you started, it's probably never showing up. You were scammed.

Better yet is the offer to give you a piece of the company. It's verbal only, but you trust them. Still, they never put it in writing. Surprise! Ownership never happens.

At the very least, confirm any offer you get in writing before you accept. Just email them, with a read and a delivery receipt, something like, "Thank you for meeting with me on Thursday. This will confirm my understanding of your offer to me. The salary for the janitorial supervisor position is $10 million per year and I will be conveyed a 50% ownership interest in the company after one year. If this is incorrect, please advise me within 24 hours. I appreciate the opportunity and will advise you of my decision within 48 hours."

If they respond and say yes, that's the offer, then if you accept in writing you have a contract. Offer+acceptance+consideration=contract. If they call you to confirm, then put that in writing too. "This will confirm our conversation today where you confirmed that the salary for the position of janitorial supervisor is $10 million/year with a 50% ownership interest to be conveyed in one year."

Anything important to you, confirm in writing. If you are going to be made General Manager and right now you are a salesperson, put it in writing. If you are going to have relocation expenses reimbursed, put it in writing. If they guarantee that you will have a job for at least a year while you prove yourself, put it in writing.

That won't keep the boss from being a jerk, but at least you have something to prove what was said and take to someone like me.

Now, back to the jerk. It's hard to turn down a job in the White House or the corporate suite. But sometimes that's the best decision.

If you find out (and you should do some due diligence, like checking Glass Door, LinkedIn and other sources to find out about the company and its turnover rates) that there have been 5 people in the position you have applied for in the past two years, run. This is not a good place. Even if they all died of a mysterious illness, maybe you're dealing with a serial killer or toxic mold. Odds are, someone in the company is awful to work with. Maybe the job isn't what was promised. Maybe the boss hurls staplers at people and punches holes in walls.

Or maybe the boss just likes to scream, "You're fired!"

Try to avoid employers with high turnover. Your health and your resume will thank you.

Friday, August 18, 2017

Can You Be Fired For Being A Racist A**hole? Yes. Well, Maybe. Probably.

So, a Twitter campaign has been outing folks who attended the Nazi/white supremacy/alt right rally outside the University of Virginia in which a Nazi murdered a protester and injured many others by plowing into them with a car. Some of those who have been outed were promptly fired. I've been asked whether firing someone for attending a racist rally is legal.

The answer is yes. Well, maybe. Probably. There. Are you happy?

An employer who is aware of an employee's propensity to engage in race or national origin discrimination (or any other kind of discrimination) has a duty to maintain a safe workplace. That means firing or disciplining the worker, or taking other steps to make sure he or she doesn't engage in illegal harassment or discrimination in the workplace. An employer that fails to take action could be liable for punitive damages if the racist employee acts on his/her beliefs at work.

Thus, my initial answer, which is yes, you can be fired for being a racist a**hole. However.

Some states and local governments have laws protecting you from discrimination due to your political affiliation or activities. For instance, California, Colorado, New York, North Dakota and Louisiana say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. Here in Broward County, it's illegal to fire employees based upon political affiliation. If you work for government, there's the good old First Amendment to protect you. Plus, the Civil Service Reform Act of 1978 prohibits political affiliation/activity discrimination against federal employees.

Thus, my second answer. Maybe. This is one of those situations where two laws rub up against each other. I would think a strong argument could be made that attending a rally like last weekend's would give an employer a legitimate reason other than political affiliation to fire or discipline an employee. Once the employee starts spewing racist stuff in public and waving swastikas, that may well cross a line. Will the courts decide that the employer has a legimate business to protect? Maybe. Even with government employees, the government may well be able to prove that the employee's free speech rights were outweighed by the government's right to efficient and orderly operation.

If, however, the employee has always been respectful to coworkers and customers of color and continues to do so after the rally, maybe the employer doesn't have a legitimate reason other than political affiliation to fire the person.

Still, I default to my third answer, probably. Most states have no legal protection for political firings. So most employees have no legal protection if they attend a racist rally. The employer probably has a duty to protect coworkers and customers from a racist. I suspect most courts will say firing someone for attending a racist rally that turned murderous is perfectly legal, maybe even required.

Friday, August 11, 2017

Will You Let Your Employer Microchip You? Just Say No!

And so it begins. A Wisconsin company is implementing a "voluntary" program where employees can be microchipped. They swear that they aren't using GPS technology to follow the employees. However, they say it is a convenience to the employees, allowing them to pay for things and get in and out of the building quickly.

What's the worst that could happen?

While this foray into treating employees like beloved pets sounds benign, it's only the beginning. I guarantee that if this company's employees agree to be microchipped, employers all over the country will demand the right to implant employees with chips that do have GPS and other nasty tracking software.

I can tell you some of the worst that can happen with microchipping employees. Here are just some of the possible nightmare scenarios:

  • Worker's comp: Infections, allergic reactions, cancer (yes, cancer), medical problems galore.
  • Religious discrimination: Some employees will have religious objections to these implants. Will those objections be honored, or will the employees be fired? 
  • Privacy: Employers will know where employees are at all times. Do you really want your employer timing your bathroom breaks, logging every time you get a cup of coffee or take a brief walk to stretch your legs? And if they have GPS, they will know every time you go to a bar, a movie (and can figure out what movie you saw), political rally, union meeting, etc.
  • NLRB: If employers can track which employees go to union meetings, I predict some NLRB complaints.
  • Disability and pregnancy discrimination: It's only a matter of time before microchips are a "wellness" measure tracking your blood pressure, weight, diseases, and pregancy. Once employers are aware of this information, I can guarantee disability and pregnancy discrimination suits will abound. You should not trust your employer with your health information. It's none of their business.

Need I go on? Just say no to employer microchipping, before all employees are treated like dogs.