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.

Monday, May 16, 2016

Hey, Frontier: Suspending Women For Breastfeeding Is Illegal

The story about Frontier Airline's treatment of female pilots who are breastfeeding and need to pump while at work wasn't very surprising to me, because employers still get the whole pumping-at-work thing wrong. Here's what the four pilots who just filed with EEOC say happened:

"Rather than support me, company management questioned my parenting choices as well as my commitment to my career. They even questioned why I didn’t switch to formula,” pilot Shannon Kiedrowski said in a blog post about the complaint. 
Kiedrowski said she and the other pilots were put on unpaid leave at 32 weeks and weren’t allowed to perform other work for the airline. Women who are in their late third trimester are usually discouraged from flying. 
When they returned to work, the company offered no accommodations for breastfeeding mothers, they said. Three of the pilots said they suffered breast infections because they couldn't pump regularly, due to work-schedule demands, and Kiedrowski said she received unspecified discipline for pumping aboard an airplane.

I'm not sure why employers get this so wrong. First of all, twenty-seven states have laws protecting women from breastfeeding discrimination at work. Florida is not one of them, by the way (so wake up, Florida legislators). But Colorado, where this story took place, is one of them. The states protecting women are Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, Washington and Wyoming, plus DC and Puerto Rico.

Women were still having problems with this issue in the other 23 states when Congress finally woke up in 2010 and passed the Patient Protection and Affordable Care Act which, among other things amended the Fair Labor Standards Act (FLSA) to require employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth each time such employee has need to express milk, and a private place other than a bathroom for her to do so. (This law only applies to employees who are not exempt from overtime.)

Then there were some weird cases where judges said pregnancy discrimination didn't include discrimination against women who were lactating because lactation was not a condition caused by pregnancy. Doh!

But then the Supremes came out with the Young v. UPS case saying employers had to accommodate women with pregnancy and pregnancy-related conditions the same as other employees. So now I think it seems clear that an employer has to accommodate a breastfeeding mom who needs some breaks to express breast milk the same they'd treat a man with prostate problems who has to take frequent breaks to express, um, pee. EEOC certainly agrees that allowing time to express breast milk is a reasonable accommodation for pregnant women.

Bottom line: I don't care if your employer thinks it's icky. They still have to grant you reasonable time to express breast milk during work hours, in a private place that is not a bathroom. and they can't just suspend you without pay because they think it's gross or inconvenient.

Friday, April 8, 2016

North Carolina Now Requires Men To Use Your Employer's Ladies' Room

If you work in North Carolina, be warned: your employer now has to require men to use the ladies' room. Not all men, but some men. These men have beards, mustaches, and yes, penises. But they have to use the ladies' room due to a new law just signed by your governor. And if you're a business, you are now legally required to humiliate some customers and allow others to be frightened. This law was meant to attack the LGBT community, but it will have some unintended consequences.

As I sat writing this I looked over one of the most beautiful vistas on the planet. You see, I was on vacation in North Carolina, a place I truly love. The people here are so nice. So what the heck is going on with the North Carolina legislature? How did this lovely place turn into the epicenter of a nasty anti-LGBT potty obsession?

While I was on vacation enjoying spring in the mountains, the North Carolina legislature enacted an ugly set of laws attacking the LGBT community. The worst of these is a law requiring businesses to only allow people to use the restroom designated for their "biological sex" defined as "The physical condition of being male or female, which is stated on a person's birth certificate."

So let's think about the effect of this really stupid bill.  Here are just some of the ridiculous consequences that will result:

  • You're a business owner. A major client was born male but dresses as a female, considers herself female, and has had the operation to become female. You can't let her use the ladies' room. Bye, bye client.
  • You're in the ladies' room. A person who dresses like a male, has a beard, and a low voice enters the ladies' room. Oh, yeah. He has a penis. It turns out the male was born female. Not only do you have to let him use the facility, but the business owner can't try to prevent this. 
  • You were born male but dress as a female. You consider yourself female. Your coworkers and boss have accepted you as a female. Your employer can't let you use the ladies' room. You have to use the men's room, explain to customers why you are in the men's room, and risk being attacked in the men's room by anyone who is either homophobic or just a rapist. 
  • You're an employer. Your employee is a female who identifies as male. He dresses like a male, has taken hormones that cause him to have a beard, and goes by a male name. You have to require him to use the ladies' room. Your female employees object and say it's sexual harassment to have him there. Female customers object. You're damned if you do and damned if you don't let him use the men's room. 
  • Your top female customer has a male autistic child age 7. You have to stop her from taking him in the restroom with her because the law has an exemption only for children under age 7 to accompany an adult of the opposite sex. She has to leave this child unaccompanied outside the restroom if she really has to go.

As a female who identifies as female, I really don't appreciate the North Carolina legislature telling me that I have to share the ladies' room with a female-born who identifies as a male. As a parent, I don't appreciate the legislature telling parents they have to leave their children unaccompanied if they need to use the facilities. As a business owner, I wouldn't appreciate the North Carolina legislature telling me I have to humiliate a client or an employee.

The good news is that this is a law with zero teeth. The North Carolina legislature included no penalties in the law for violations. There is no criminal or civil penalty if you break this law. What are business supposed to do? Demand to see a birth certificate before entry to the restroom? There is absolutely no way for businesses to practically monitor their restrooms to enforce this law. Plus, business risk violating federal anti-discrimination laws if they enforce this new law.

My advice to the transgendered: use the restroom you feel comfortable in. My advice to parents: take the kid with you. My advice to employers: don't get involved in employee potty issues. They just want to pee.

If you're transgender and want to understand your rights in North Carolina, talk to an employment lawyer in your state.

Friday, March 4, 2016

Florida Adds "Financial Information" To List of Trade Secrets That Can Get You Tossed In Jail

Florida continues to be one of the worst states in the nation for employees. Zippo has passed so far in favor of employees this legislative session, but legislators thought, "Gee, Florida just isn't rotten enough for employees. Let's make it worse."

So they added the very broad category of "financial information" to the list of trade secrets that, if taken, can land employees in jail. What is financial information? Anything with numbers on it, including the office pool on Mary Lou's due date? Only banking and accounting documents? Who knows? Did the Republican legislature think to define it? Nope.

Still, in order to prove this crime, the prosecution will also have to prove that the information was:
1. Secret;
2. Of value;
3. For use or in use by the business; and
4. Of advantage to the business, or providing an opportunity to obtain an advantage, over those who do not know or use it when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.
So taking a post-it with "$1.00" written on is is probably not enough for a conviction, but when you're gathering up documents to prove how much you're owed in commissions or to prove discrimination, you need to be careful. Some poor schmo will be the first person to get the honor of testing the constitutionality of this very broad law. Don't let it be you.

Employers already had the remedy of injunction and money damages if employees took and used trade secrets to form their own company or help a competitor, so this seems like overkill. But there's nothing this legislature seems to think is too harsh to impose on Florida working folks.

Vote well, people. Vote well.

Wednesday, February 17, 2016

Employment Law Blog Carnival (#ELBC) Freaky February Holiday Edition

February isn't just Valentine's Day, despite what the greeting card and flower industries would like you to believe. February ought to be designated National Weird Holiday Month, because it is filled with odd and different holiday celebrations. Since I'm honored to be hosting the Employment Law Blog Carnival this month, featuring the best employment law blogs around in one handy place, I get to share some of these unusual holidays with you.

February 2: Groundhog Day

In honor of the holiday that has large rodents predict the weather while we deny scientific evidence of global warming, Michael D. Haberman at Omega HR Solutions gives us If Lily Ledbetter sees her shadow does that mean more government regulation?

February 8: Laugh and Get Rich Day

Okay, so you won't get rich on unemployment. But Philip Miles at Lawoffice Space explains in The Unemployment Compensation Retaliation Exception to "At Will" Employment how the law protects you from being fired for claiming unemployment benefits. Which seems like it would be impossible, since you have to be unemployed to get unemployment, right? But read this post for an interesting and rare situation. Then collect your benefits and laugh all the way to the bank.

February 9: Toothache Day

I question why we need to honor toothaches, but there you have it. Eric Meyer's post in The Employer Handbook, The 24/7 world of social media can bite your employees when they least expect it reminds us that employees who aren't careful with their social media posts may get bitten by their posts. So I guess it's social media that will get the toothache? Okay, it's a stretch, but how can I resist a day honoring tooth pain?

February 11: Don't Cry Over Spilled Milk Day

When an employee reports discrimination or something else illegal, the temptation is to retaliate. But maybe employers should remember their mother's caution: don't cry over spilled milk. Once the cat's out of the bag, you can't retaliate, at least not legally. Check out William Goren's Proposed Enforcement Guidance on Retaliation and Related Issues from the EEOC: the ADA Version at the Understanding the Americans With Disabilities Act blog before you even think about retaliating against an employee.

February 12: National Lost Penny Day

This is the day you are supposed to gather up all your pennies and cash them in. Which you may have to do if your employer isn't handling your 401K correctly. Check out Jewell Lim Esposito at Benefits Law Advisor's More Permissible Mid-Year Changes to Safe Harbor Plans and Safe Harbor Notices to find out if your employer's plan is up to snuff. (If you don't understand the photo, ask a nerd.)

February 14: Valentine's Day

We can't forget the most hyped February holiday of them all. For lovers (at least lovers of employees), Robert Fitzpatrick in Fitzpatrick on Employment Law offers The 4th Circuit Loves Plaintiff's Lawyers.

February 16: National Do A Grouch A Favor Day

Independent contractor issues can make most employers grouchy. Before you take your crankiness out on your staff, let me do you a favor and tell you to read William Goren's Does § 504 Apply to Independent Contractors? at the Understanding the Americans With Disabilities Act blog.

February 20: Hoodie Hoo Day 

Dealing with pension issues makes me need a break, for sure. Hoodie Hoo day is described as, I kid you not, "On this winter day, people go out at noon, wave their hands over their heads and chant 'Hoodie-Hoo'." Jewell Lim Esposito at Benefits Law Advisor's post Trying to Sort Through Retirement Plan Operational Issues? February 1: IRS Offers Discounts on Some Fees for Employer’s Voluntary Compliance Submissions may help you sort through some sticky retirement plan issues. But you can always go outside and chant.

February 20: Love Your Pet Day 

In a great example of people who are ruining things for everyone, Mike McClory in Bullard's Employment Law posts Employment Law Prop Bets ~ EEOC, OFCCP, Minimum Wage, and Flying Turkeys, in which he discusses, among other headier issues, an emotional support turkey allowed on a flight, with its own seat.

February 22: Be Humble Day

Employers might want to be a little more humble when dealing with employee religious accommodations. Janette Levey Frisch at the Employerologist can help employers with when they have to (and don't have to) grant religious accommodations in Do You Have to Allow Your Employees Unscheduled Prayer Breaks?

February 25: National Chocolate-Covered Nuts Day

Mike McClory in Bullard's Employment Law talks about whether you have to accommodate nutty religious beliefs in his post Fictional Mailbag: Religious Accommodation And Request For Relief From “Park To The East” Policy

February 26: Tell a Fairy Tale Day

Employers tell all kinds of fairy tales about why they can't or won't pay wages. If you're tired of excuses and are ready to take action (at least in California), check out Andrea Paris's Wage Claim Process In California.

February 27: No Brainer Day 

My post, Grow Up! Florida Legislators Need To Get Over Potty Issues discusses an issue that should be a no-brainer but which is too complex for potty-obsessed legislators: LGBT discrimination.

And now my work is done. So I'll celebrate February 28: National Public Sleeping Day, a little early and take a nap. 

Friday, February 12, 2016

Grow Up! Florida Legislators Need To Get Over Potty Issues

Potty issues are apparently a big political concern here in Florida.

When I first moved to Florida from the liberal Northeast, I became involved in the campaign to pass the Equal Rights Amendment. I thought it was a no-brainer. But while phone banking I encountered numerous people arguing with a straight face that passing the ERA would mean unisex bathrooms. I was astounded. Well, now we have plenty of unisex bathrooms in this country and the world didn't end.

Yet Florida legislators haven't gotten over their potty issues. Last year, a bill that would have made it a crime to use a bathroom marked for the opposite sex passed one committee before dying a well-deserved death in another. The bill was so poorly written that it would have been a crime to change a male baby's diaper in a women's restroom. All for the purpose of harassing the transgendered.

Just when I thought the worst of the potty issues had come and gone, this happened: a bill to make LGBT discrimination illegal in Florida failed because Florida legislators fear they'll pick up gay cooties in the potty. Well, okay, they didn't actually say cooties. But, in the words of one Republican lawmaker, “you could have a lot of weirdos doing weird things in bathrooms.” These legislators claim they fear that men could dress up as women and really be sexual predators out to attack women in bathroom stalls. Alrighty then.

Here's the thing. Sexual predators could do that very thing right now. There's nothing to stop them other than that it's already illegal to sexually assault people, whether in restrooms or elsewhere. And there has not been a single reported instance of any attack by a transgender person against a person of the opposite sex in any restroom in any state where LGBT anti-discrimination laws have passed. Not one. Zero. Zip.

I'm way more concerned for the transgender man who identifies as a woman and the post-op transgender woman who dress as females yet have to use the men's room. Not only are they being forced to put themselves at risk of physical or mental abuse, but isn't that more disturbing to men and women than just letting people use the potty they feel comfortable using?

The argument, in short, is specious. Which brings me back to cooties. Because that's the only explanation I can come up with for this silly argument. Yet we are continuing to allow legalized discrimination against gay workers in Florida all because Florida legislators haven't gotten over their potty issues.

So I say to Florida legislators, grow up! Get over your potty issues and pass a law that most of Florida's major corporations support and that will actually benefit voters in our state.

Friday, February 5, 2016

My Predictions for 2016

OK, so I waited a bit, and a month of 2016 has already passed. Still, I promised that I'd give you my predictions for the year, so here they are:

Political firings: Since it's an election year, we'll hear about people being fired for discussing politics at work, for supporting the wrong candidate, and for being involved in certain campaigns. We'll also hear some threats from CEOs and other corporate types that if their employees vote for certain candidates (read: not Republicans) they'll be fired. Is that illegal? Depends on the state. In some cases, it depends on the city or county. Should be an interesting and litigious campaign season.

LGBT discrimination: Some states and localities will pass laws against LGBT discrimination, but my home state of Florida will fail again.

Obama to the rescue: The President will continue to be active with his pen. He'll try to squeeze in some more pro-employee executive orders before he goes to the big speaking circuit.

Clear choice: The candidates for President will make their positions on working people very clear. You will need to vote very carefully. You could easily lose many workplace rights if you vote wrong.

EEOC steps up: EEOC will step up its activities in one final burst before the new President gets a chance to gut it (or not gut it - see above about voting well).

NLRB steps up: NLRB will also try to help working people as much as it can while it still can. Employers will complain bitterly.

Do-nothing Congress: Congress will do zip to help working people. They're too busy campaigning and fighting among themselves. They will try some anti-employee crap. The President will veto it.

Criminalization: We'll see more employees arrested and prosecuted for things like trade secrets violations, whereas employers who steal wages will walk.

Joint employer: Whether franchises and placement agencies are joint employers with parent companies and the companies employees are placed with will be a hot issue this year. Federal agencies say yes. Some courts will say no. The Supremes won't decide this year, so more litigation will ensue.

Guns at work redux: We have many states with take-your-guns-to-work laws that protect employees from being fired as long as they have guns in lock boxes in their vehicles. Now employees and the NRA are going to push to allow employees with concealed weapons permits to carry into the workplace. Next, if they succeed, they'll push open carry in the workplace. Will employers wake up and rise up against the NRA? Not likely this year because they're supporting the same candidates. Be careful what you wish for, employers.

There will be lots more going on than all this because the elections usually cause some havoc. But here you have my predictions for the year. Vote well, so I can have some good predictions in 2017.

Monday, December 21, 2015

Call Me Karnak: How I Did On My Predictions For 2015

It's time to see how I did on my predictions for 2015. I have to say, I did pretty well. See for yourself. Here's what I predicted, and what really happened:

1. Intern sexual harassment: I predicted that Miami-Dade County would follow Broward County's lead and pass an ordinance banning sexual harassment of interns. Boy, was I wrong. Broward's proposed ordinance stalled indefinitely. Miami-Dade did nothing to protect interns. I predicted a bill would be introduced in the Florida legislature, but that Republicans in charge of both houses and the governorship would block it. I was right. On the national front, I correctly predicted we'd see a move afoot in other states to pass a law similar to the ones passed in California, New York, Oregon and Illinois. This year Connecticut and New Jersey passed legal protection for interns and a bill was introduced in Michigan.

2. Micro-unions: I predicted that micro-unions would start popping up more in 2015, but it seems that there wasn't exactly a rush to unionize small groups of employees of bigger employers. Still, there were a few micro-unions that were voted in in 2015. A small group of Volkswagen skilled trade employees were approved to vote on unionizing. Pharmacists at a Target in Brooklyn voted in a micro-union, giving unions a foothold for the first time in the mega-retailer. It wasn't the woe-is-me rush that anti-union folks predicted, but it's a start.

3. Minimum wage: I predicted that 2015 wouldn't be as big a year for increases because it isn't an election year, but that we'd see some more states and local governments raise the minimum wage to over $10/hour. Rhode Island passed an increase to $9.60 an hour, so very close but no cigar. Cities did better by their workers in 2015. Los Angeles and Sacramento raised their minimum wage to $10.50. Mountain View, Santa Clara and Palo Alto, CA and Santa Fe, NM went up to $11.00. Mountain View's rate will gradually reach $15.00 in 2018. Portland, ME went to $10.10.

4. Obama as employee advocate: I predicted that President Obama would continue to use executive orders to push for employee rights, and he certainly did that. I predicted that his push to pass a paid sick leave law would fail and that members of Congress with elephantitis would do everything they could to make sure workers remain oppressed and that certainly happened. For more about what President Obama did with his pen, check out my blog post on it here.

5. Gay marriage: I predicted that we'd continue to see marriage equality expand. Yep. Called that one.

6. Marijuana: I predicted that legalized marijuana and medical marijuana would continue to expand, but not one new state legalized it in 2015. However, Delaware finally restarted its medical marijuana program this year and opened its first dispensary. Illinois also opened up its first dispensary. Some states added certain medical conditions to their approved list of conditions for which marijuana could be prescribed. So there was movement, but not the surge I expected. Several states are trying again next year. I predicted that employees who use marijuana for medical purposes would continue to get fired due to lack of laws protecting them even when they have a prescription, and that definitely happened.

7. Republican roll-back: I predicted that Republicans would try to roll back worker rights. I predicted they'd attack the Fair Labor Standards Act. They did, trying to pass legislation to allow comp time instead of overtime pay. I said they'd attack the NLRB. They did, as they tried to reverse NLRB's ruling on franchises as joint employers and on simplifying union elections. I said they'd try to repeal Obamacare. They did. I said President Obama would veto these efforts. He did.

8. Noncompetes come into question: I predicted we'd start to see some antitrust investigations of the more extreme and abusive noncompete agreements. Michigan legislators took a swing at noncompetes, as did Maryland and Rhode Island legislators, but didn't manage to ban them yet. I said there will be another effort in Massachusetts to ban them, but it will likely fail. So far, there's no ban there, but legislation is still pending. I predicted no states would ban them yet, but that eyes would begin to open on how abusive they can be. I was actually wrong, since Hawaii banned noncompete agreements for many tech workers this year. Senator Franken has introduced legislation to ban noncompetes against low wage workers. A $415 million settlement in a no-poach agreement case should also shake some employers up to the implications of illegally barring employees from working for competitors.

9. Gridlock: I predicted that zero would actually happen on the national level. ENDA, Civil Rights Tax Fairness Act, FAMILY Act, and Arbitration Fairness Act. Nothing happened.

10. Ban the box: I predicted more states and local governments would ban employers from asking about arrests and convictions on applications, and would limit the use of convictions found in background checks to those that are actually relevant to the job sought. Georgia, Hawaii, New York, Ohio, Oregon, Vermont and Virginia brought the total to 19 states and over 100 municipalities that have passed some form of ban-the-box legislation, policy or executive order. President Obama has also banned the box for federal employers.

Overall, I think I did pretty well in predicting 2015. Next, I'll share my predictions for 2016.