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Monday, January 19, 2015

What I See In My Crystal Ball For Employment Law In 2015

So far I've been pretty prescient in my annual predictions, so better pay attention here. My predictions for what will happen on the employment law scene in 2015 are:

1. Intern sexual harassment: With Broward County moving to develop an ordinance to ban sexual harassment of interns, can Miami-Dade County be far behind? While I predict a bill will be introduced in the Florida legislature, Republicans in charge of both houses and the governorship will block it. Who can be in favor of sexual harassment of our teenagers? I'm guessing pretty much anyone who has an elephant as their symbol. On the national front, we'll see a move afoot in other states to pass a law similar to the ones passed in California, New York, Oregon and Illinois.

2. Micro-unions: As the NLRB flexes its muscles to ease union organizing, and big unions like AFL-CIO pushing organization of smaller units, the union movement will slowly start coming back swinging. Employees who realize they have been getting the short end of the stick will start organization efforts of smaller groups. Micro-unions will start popping up more this year.

3. Minimum wage: 2014 was a huge year for minimum wage increases, and employees will continue fighting for raises in 2015. It won't be as big a year for increases because it isn't an election year, but we'll see some more states and local governments raise the minimum wage to over $10/hour.

4. Obama as employee advocate: Now that he has nothing to lose, President Obama will continue to use executive orders to push for employee rights. He has just penned expansions to federal employee and federal contractor employees' minimum wage and medical leave, and to help immigrant-employees. He'll do everything he can with his pen to expand worker rights. His push to pass a paid sick leave law will fail. Members of Congress with elephantitis will do everything they can to make sure workers remain oppressed.

5. Gay marriage: Having reached the tipping point with a solid majority of states legalizing gay marriage, we'll continue to see marriage equality expand. This may not be the year for complete legalization, but it's all over but the shouting for pro-discrimination folks.

6. Marijuana: Legalized marijuana and medical marijuana will continue to expand. Employees who use marijuana for medical purposes will continue to get fired as employers fail to wake up to the fact that marijuana actually helps people and isn't as bad as, say, codeine or benadryl for workers on duty.

7. Republican roll-back: The President will have to exercise his veto pen lots this year, as Republicans try to roll back worker rights. Look for very excited Rs to try to roll back the Fair Labor Standards Act, National Labor Relations Act, ObamaCare, safety laws, discrimination laws, and pretty much every pro-employee law they can think of. They long for the days of the Triangle Shirtwaist Factory. The President will promptly veto all such attempts, which will egg them on to even more extreme positions.

8. Noncompetes come into question: With Jimmy Johns and other minimum wage noncompete agreements coming to light, legislators are starting to wake up to the abuses that these agreements impose on employees. We'll start to see some antitrust investigations of the more extreme noncompete agreements. There will be another effort in Massachusetts to ban them, but it will likely fail as both parties cave to employer interests. This won't be the year states start banning or limiting them, but eyes will start to open.

9. Gridlock: Not difficult at all to predict will be that zero will actually happen on the national level. ENDA, Civil Rights Tax Fairness Act, FAMILY Act, and Arbitration Fairness Act are just some of the laws that will die a horrible death this year. It will be at least two years before anything at all can get done in the way of national legislation.

10. Ban the box: More states and local governments will ban employers from asking about arrests and convictions on applications, and will limit the use of convictions found in background checks to those that are actually relevant to the job sought.

That's all for this year's predictions. How do you think I will do? What are your predictions? Tell me about your thoughts in the comments section.

Monday, January 12, 2015

How I Did On My Employment Law Predictions For 2014

Last year I made predictions for what would happen in 2014. How did I do? Call me Cassandra again, because I did pretty well:

  1. Minimum Wage: I predicted that raising the minimum wage would be a hot political issue in 2014. Eleven states enacted minimum wage increases and so did several municipalities. At the beginning of 2015, 23 states saw minimum wage increases. Five states had ballot measures approved by voters. Plus now federal contractors have to pay a minimum wage of $10.10/hour.
  2. Legalize It: I predicted that legalized marijuana would spread to more states, and two more states, Oregon and Alaska legalized it. 23 states and DC have legalized medical marijuana, with Maryland, Minnesota and New York legalizing it in 2014. Florida's ballot measure failed (it got a majority but not the super-majority it needed).
  3. Health CareObamaCare kicked in and I predicted it would cause come confusion and some stupid employers to start dumping insurance and cutting people to part-time to avoid paying insurance, but that most of the stupid employer activity would be at the end of the year and into 2015. While some employers did cut hours and dump insurance, the number of employees involuntarily cut to part time actually dropped this year.
  4. Internships Cut: I predicted we'd see unpaid internships cut and see some attempts to put interns under the protection of discrimination and sexual harassment laws, but that Congress would not pass such a law. It's true - unpaid internships are going the way of the dodo bird. New York, Illinois and California passed laws against sexual harassment of interns.
  5. Failed Again: Attempts to pass anti-bullying laws and the Civil Rights Tax Fairness Act will fail just like they do every year. States tried and failed, and New Hampshire passed one that was vetoed, but only Tennessee has managed to pass an anti-bullying law. California passed a law requiring that employers train supervisors regarding abusive conduct.
  6. NLRB and EEOC Cut Off By Courts: I predicted NLRB and EEOC would continue to try to expand the protections employees have and that courts would continue to stop them, but that they would inch forward with some new progress for employees. NLRB did make progress, saying employees can use employer email to organize unions. EEOC fought for its life against big sanctions, but managed to press for LGBT rights.
  7. Lip Service: I predicted lip service to pro-employee laws for the midterms but that little or nothing would pass due to gridlock. Failures included theFAMILY ActArbitration Fairness Act, and ENDA
  8. Background Checks: I predicted that more states would ban or limit use of credit information in hiring but that federal efforts to do so would fail. I also predicted that more states will pass ban-the-box laws barring many inquiries about arrest and conviction records in job applications but that there was zero chance such a law will pass on the federal level this election year. No federal laws passed but Delaware passed a law prohibiting use of credit information in hiring decisions, making it the 11th state to limit or ban the use of credit information. Ban-the-box was a hot issue in 2014, with New Jersey, Illinois and DC adding themselves to the 13 states along with 67 cities and counties having passed these laws nationwide.
  9. Pregnancy Discrimination: I predicted the Florida Supreme Court would say that the  Florida Civil Rights Act covered pregnancy discrimination. It did.
  10. LGBT Protections: I predicted that states and local governments would continue to pass discrimination laws banning LGBT discrimination. In 2014, Virginia and Maryland passed anti-discrimination laws along with many municipalities and counties.
  11. Religious Discrimination: I predicted that right-wing religious groups would push the argument that religious discrimination laws allow them to speak out against gay rights in the workplace. They did, with some states and local government passing or introducing "religious freedom" laws that say it's okay to oppress LGBT citizens in the name of religion.
Next week I'll put in my predictions for 2015.

Friday, January 2, 2015

Federal Judge Says All Florida Clerks Have Duty To Issue Same-Sex Marriage Licenses

So, it's official. On Tuesday, January 6 at 12:01 a.m., gay marriage is legal in Florida (absent some intervention by the 11th Circuit or the Supremes). While Greenberg Traurig had previously advised the clerks not to issue the licenses, after the ruling by Judge Hinkle ruled that all Florida clerks have a duty under the Constitution to issue same-sex marriage licenses.

In a display of extreme douchebaggery and poor-loserdom, clerks in Duval, Baker, Clay, Okaloosa and Santa Rosa counties have decided to stop all marriage ceremonies in their offices, just so they don't get the gay cooties. That's right. They've decided to shirk their duty to all citizens of their counties because they don't like gay marriage. Boo-freaking-hoo. These guys go on my permanent Roll Of Shame, and their names will be on the wrong side of history, just like the idiots who tried to stop school integration in the 60s.

Some clerks have announced they will start issuing licenses at 12:01 a.m. on Tuesday. The clerks so far that have made such announcements include Broward and Osceola counties. Many other clerks have announced that they will comply with the order. I haven't heard of any who plan on outright refusing to issue the licenses, but stay tuned.

If you plan to get married on January 6 or 7, please take the 4 hour premarital course that is required, which you can do online or in person. There are quite a few online providers out there. Otherwise, you have a 3 day waiting period. For more on requirements for marriage licenses in Florida, check here and here. Your county clerk's website will also have information about the requirements and their hours. Please note that a license issued by any Florida clerk will let you marry anywhere in Florida, so if your clerk refuses, go to the next nearest county to get the license.

Why does it matter, employment law-wise? Well, it will affect Family And Medical Leave, pension, insurance, benefits, confidentiality, marital status discrimination, privilege, and tax filing status. Florida employers need to get on the phone or email their management-side employment lawyers ASAP to adjust policies and make sure they are in compliance with the laws.

Remember, employee-side lawyers like me are watching to make sure you obey the law and treat same-sex married couples with dignity.

Congratulations to everyone who is getting ready to tie the knot!

Tuesday, December 23, 2014

UPDATE: The Roll Of Shame: Some Florida Clerks Of Court Refuse To Issue Gay Marriage Licenses Despite Ruling

Why, why, why is it always Florida? In an issue similar to the hanging chads of yesteryear, Florida is in a state of confusion yet again, this time over gay marriage licenses. In every Florida county where a court has ruled on the issue, the courts have ruled that failure to marry gay couples violates the Constitution. Our Republican Attorney General, Pam Bondi, has thrown a tizzy of legal filings everywhere from counties that ruled to the 11th Circuit Court of Appeals to the Supreme Court.

Bottom line so far is that, while the 11th issued a temporary stay of the ruling compelling gay marriage licenses to issue, that stay ends January 5. They refused to extend it. The Supreme Court has also just refused to stay the ruling. So gay marriage becomes officially the law in Florida January 6. Right?

Here comes the confusion. A law firm, Greenberg Traurig (and shame on them), advised the clerks of court that they might face criminal penalties if they issue gay marriage licenses on January 6. They told the clerks that the case legalizing gay marriage only applies to Washington County. Other lawyers say they're dead wrong. I think they're dead wrong. Every single public official in Florida swears to uphold the Constitution. Refusing to issue the licenses violates the Constitution. If they aren't removed from office for refusing to uphold the Constitution in one of these lawsuits,

As a result, couples planning to get licenses January 6 will need to pay close attention to the law and legal wrangling over the next couple weeks.

Flagler County is the only county so far that has said it is definitely issuing licenses January 6. Kudos to Gail Wadsworth for upholding her oath. UPDATE: AP reports that Osceola County is the only county that responded affirmatively when they asked, so whether or not Flagler County will issue licenses is unclear. Orlando Mayor Buddy Dyer has announced he plans to officiate a wedding on January 6. Osceola County has been sued as a result of their announcement.

So far, the following clerks have indicated that they are "ready" to issue licenses January 6 (Whatever that means - are they going to do it? Still unclear):

Broward County
Monroe County

The Monroe County clerk says she wants to be the first clerk to marry a gay couple, so hopefully she'll actually do it and break the ice.

Collier County is still undecided. AP says 6 clerks are undecided, but didn't say which 6.

The following clerks' offices have said they will not issue gay marriage licenses January 6 (unless a court makes them do it), and thus are on my official Roll Of Shame (UPDATE: AP says 46 responded to them that they would not issue licenses, but they didn't share their list):

Miami-Dade County
Pinellas County
Hillsborough County
Pasco County
Hernando County
Lee County
Duval County
Manatee County
Flagler County
Brevard County

No official word yet from Washington County as to whether and whey they will comply with the ruling in the case that started all the confusion. Here's their website, if you want to follow the issue yourself. UPDATE: Last word was they were seeking clarification as to whether they had to issue one license, only to the couple who sued, or issue to anyone who applies. Facepalm. In the meantime, I'll keep updating you on this important issue.

Friday, December 12, 2014

States With Pro-Employee Laws: No Firing For Legal Off-Duty Activity

Here in Florida, like many states, you can be fired for pretty much anything as long as it isn't discrimination, whistleblowing, making a worker's comp claim or some other protected activity. That means you can be fired because your boss doesn't like your hobby, your friends, the fact that you prefer whiskey over beer - just about anything they don't like about your non-work activities.

Most states allow this kind of nonsensical firing, and business owners have to pay higher unemployment taxes as a result of other employers' whims. Taxpayers pay the cost too, in higher taxes due to the need for public assistance, healthcare and a whole host of other services. It makes no sense at all.

But some states have seen the light. They have laws that prohibit employers from firing employees for legal off-duty conduct. Do you live in one of these states? Here they are:
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California: CA Labor Code § 96 and 98.6 say no employee  no employee can be discharged or otherwise discriminated against for lawful conduct occurring during nonworking hours away from the employer's premises. An employee who is discharged, threatened with discharge, demoted, suspended, or discriminated against in any manner in the terms and conditions of his or her employment is entitled to reinstatement and reimbursement for lost wages and benefits.

Colorado: Colo. Rev. Stat. § 24-34-402.5 says it's illegal to fire an employee because that employee
engaged in any lawful activity off the employer's premises during nonworking hours unless the restriction relates to a bona fide occupational requirement or is reasonably and rationally
related to the employment activities and responsibilities of a particular employee or
a particular group of employees; or is necessary to avoid, or avoid the appearance of, a conflict of interest with any of the employee's responsibilities to the employer.

New York: N.Y. Labor Code § 201-d says employers can't make hiring or firing decisions, or otherwise discriminate against an employee or prospective employee because of legal use of consumable products or legal recreational activities outside of work hours, off of the employer's premises, and without use of the employer's equipment or other property.

North Dakota: N.D. Cent. Code § 14-02/4-03 (2003) says it's illegal  for an employer to fail or refuse to hire a person, to discharge an employee, or to treat a person or employee adversely or unequally with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or a term, privilege, or condition of employment, because of participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer.

Some other states protect employees against firing due to the use of lawful consumable products and others protect only tobacco use. Why not more protection? Do we really need Big Employer monitoring our off-duty activities? If you don't like the thought of being fired because your employer thinks you shouldn't eat meat, shouldn't smoke, shouldn't do yoga, or shouldn't be a furry, then it's time to push for legal change in your state.

Friday, December 5, 2014

States With Pro-Employee Laws: No Use-It-Or-Lose-It Vacation

You've probably seen the commercial. A kid says, in response to the study that over 400 million vacation days go unused, "That's the stupidest thing I ever heard." Yep. Stupid. Odds are, if you don't take those vacation days, you lose them.

Employers that have policies saying vacation is paid out at the end of employment must comply with those policies. In most states, employers can refuse to pay out unused vacation at the end of employment by implementing a use-it-or-lose-it vacation policy. Many employees are rudely surprised when they find out the employer that wouldn't let them use their vacation days also doesn't have to pay them out. Most employers can also require employees to use their vacation by a certain date, usually the end of the year, or lose it. That means you'd better use those vacation days in the next few weeks if you're like most employees.

However, some states protect their citizens by barring use-it-or-lose-it vacation policies. Here are some states that look out for their voters:
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California: Under Cal. Labor Code §227.3, all accrued vacation must be paid when employment ends. California also prohibits policies that make employees take vacation by a certain date or lose it. In one California case, an illegal policy cost the employer millions.

Illinois: Under 820 ILCS 115/5; 56 Ill. Adm. Code 300.520, employers have to pay out accrued vacation pay at the end of employment unless a collective bargaining agreement with a union provides otherwise. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. 56 Ill. Adm. Code 300.520(e).

Indiana: While employers can have a use-it-or-lose-it policy in Indiana, employers have to pay out accrued vacation if their vacation policy is silent on the issue. See Indiana Heart Associates, P.C. v. Bahamonde, 714 N.E.2d 309 (Ind. App. 1999); Die &Mold, Inc. v. Western, 448 N.E.2d 44 (Ind. App. 1983).

Louisiana: Vacation pay is earned wages, so policies requiring the forfeiture of earned vacation pay are not enforceable. Beard v. Summit Institute, 707 So.2d 1233 (La. 1998). However, they may implement use-it-or-lose-it policies saying employees must use by a certain date or lose the vacation.

Maryland: Like Indiana and Louisiana, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.

Massachusetts:  Employers have to pay out accrued vacation pay at the end of employment. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. MA Atty. Gen. Advisory 99/1.

Michigan: Similar to Indiana, Louisiana and Maryland, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.

Montana: In Montana, an employer can't take away earned vacation pay or fail to pay it out for any reason. MT Dept. of Labor and Industry FAQ; See Langager v. Crazy Creek Products, Inc., 287 Mont. 445; 954 P.2d 1169 (Mt. Sup. Ct. 1998).

Nebraska: Nebraska law prohibits employers from failing to pay out earned vacation or from policies saying employees must use vacation by a certain date or lose it. See Neb. Rev. Stat. § 48-1229(4); Roseland v. Strategic Staff Management, Inc., 272 Neb. 434, 722 N.W.2d 499 (Neb. Sup. Ct. 2006); Neb. Dept. of Labor FAQ.

New York: If the policy is silent on the issue vacation must be paid out at the end of employment.

North Carolina: If the policy is silent on the issue, vacation must be paid out at the end of employment. N.C. Gen. Stat. § 95-25.12.

North Dakota: Employers can't require an employee to forfeit accrued or earned vacation leave upon separation from employment, regardless of the reason. ND Admin. Code § 46-02-07-02(12). However, they can implement policies saying vacation must be used by a certain date or be lost.

Ohio: While use-it-or-lose-it policies are allowed, vacation must be paid out at the end of employment if the policy is silent on the matter. See Fridrich v. Seuffert Construction Co., 2006 Ohio 1076 (OH App. 2006).

Oregon: Oregon is another state that allows such policies but requires employers to pay out vacation if the policy is silent on the issue.

Rhode Island:  Employers must pay employees who have completed at least one year of service for any vacation pay accrued in accordance with company policy or contract on the next regular payday for the employee when they leave. RI Stat. § 28-14-4(b).

West Virginia: If the policy is silent on the matter, vacation has to be paid out at the end of employment. See Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (WV Sup. Ct. 1999). Otherwise, employers are allowed to implement such policies.

Wyoming: In Wyoming, an employer cannot require an employee to forfeit accrued or earned vacation on leaving. WY Dept. of Employment FAQs.

Some vacation policies are an earned benefit under ERISA, so employers that have no use-it-or-lose-it policy and fail to pay out earned vacation may risk a lawsuit under ERISA.

If you want to know about your state's vacation laws, a great state-by-state summary is here. For more on employee benefits, read my article Top Nine Things You Need To Know About Your Employee Benefits.

Friday, November 28, 2014

States With Pro-Employee Laws: No Solicitation Of Employees Through Misrepresentation

I've written before about the possibility of suing an employer for fraud if they misrepresented the job. If you are lured into a job, specifically if you give up another job or move to accept the job, and the employer had no intention of keeping the promises they made, you may have a claim against them for fraud. However, any such claims have to be made under common law in most states. You may or may not succeed, depending on your state law and the facts of your case.

However, one state, California, thought it was so important to protect its citizens from this kind of employer misbehavior that they passed a law making it illegal for employers to solicit employees through misrepresentation.

The California Labor Code provides:

970. No person, or agent or officer thereof, directly or indirectly, shall influence, persuade, or engage any person to change from one place to another in this State or from any place outside to any place within the State, or from any place within the State to any place outside, for the purpose of working in any branch of labor, through or by means of knowingly false representations, whether spoken, written, or advertised in printed form, concerning either: (a) The kind, character, or existence of such work; (b) The length of time such work will last, or the compensation therefor; (c) The sanitary or housing conditions relating to or surrounding the work; (d) The existence or nonexistence of any strike, lockout, or other labor dispute affecting it and pending between the proposed employer and the persons then or last engaged in the performance of the labor for which the employee is sought. 
 971. Any person, or agent or officer thereof, who violates Section 970 is guilty of a misdemeanor punishable by a fine of not less than fifty dollars ($50) nor more than one thousand dollars ($1,000) or imprisonment for not more than six months or both. 
 972. In addition to such criminal penalty, any person, or agent or officer thereof who violates any provision of Section 970 is liable to the party aggrieved, in a civil action, for double damages resulting from such misrepresentations. Such civil action may be brought by an aggrieved person or his assigns or successors in interest, without first establishing any criminal liability.

I haven't found any other state that offers its working taxpayers this kind of legal protection. Why not? Maybe some legislators in other states can explain to me why they think it's okay to make someone leave their job by saying the position is a long-term one, but they're  really only looking to cover for someone out on maternity leave. Or they just want to lure a competitor's top salesperson over to get all their contacts, then dump them. Or they say the job is for a manager's position, but it turns out the job is for a much lower paid clerk's position. I've seen each of these situations play out in real life, so don't tell me it doesn't happen.

Maybe there ought to be a law in your state. Anyone listening in Florida?