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, May 24, 2019

Is It Time To Terminate At-Will Employment Laws?

Montana remains the only state in the nation that does not have at-will employment. At-will means you can be fired for any reason or no reason at all. Boss in a bad mood? That's a firing? Doesn't like your shirt? You're outta there.  Sure, there are exceptions like discrimination and whistleblower laws, but otherwise you're at the mercy of your boss.

So why haven't American workers risen up and said it's time to terminate at-will employment?

Well, maybe they're finally starting to, thanks to SEIU. In February, New York City saw a proposed just-cause bill introduced to protect fast-food workers at the behest of SEIU. Philadelphia passed a just-cause ordinance to protect parking industry workers last week, also at the urging of SEIU.

Montana, unlike every other state, requires employers to have just cause before they fire workers. And isn't that fair? Your family's ability to buy food and pay for shelter depends on your job. Most Americans are $400 of unexpected expenses or lost wages away from financial meltdown. Montana has had this law since 1987, and businesses are still there, the economy still functions and the state hasn't exploded, despite dire warnings from naysayers to the contrary.

Under Montana's Wrongful Discharge from Employment Act, MCA 39-2-901:
(1) A discharge is wrongful only if:
(a) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy;
(b) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or
(c) the employer violated the express provisions of its own written personnel policy.
(2) (a) During a probationary period of employment, the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason.
(b) If an employer does not establish a specific probationary period or provide that there is no probationary period prior to or at the time of hire, there is a probationary period of 6 months from the date of hire.
Pretty reasonable, huh? If New York and Philadelphia get the ball rolling, maybe other cities and states will follow. American workers deserve to have some stability and a regular income as long as they do their jobs.

Let's finally give notice that we're going to terminate at-will employment laws.

Friday, May 17, 2019

Is Your Offer Letter A Contract? Of Course It Is

I see offer letters that make a specific job offer and then say, by the way, this isn't a contract. Guess what? Offer plus acceptance equals contract. I don't care what that disclaimer says, it's still a contract.

Now, what the contract means is another thing. It may say you're at-will, which means they can fire you for any reason or no reason at all. Some states have exceptions to the at-will doctrine. In all states, at-will still doesn't affect your rights under discrimination and whistleblower laws.

Your offer letter probably has your starting position and salary listed. That means the employer is bound by this once you accept. If you're at-will, they can change it, but luring you in with a promise of a management position and high pay and then making you a minimum wage janitor is not only a breach of contract, but is likely fraud.

The offer letter probably also lists benefits and other terms. You are bound by the terms, as is your employer.

Of course, if you sign a more detailed agreement when you start, then the offer letter may be no longer in effect. Most contracts say they supersede all prior contracts. Be careful to read what you sign, especially that giant pile of papers they give you when you start. Don't sign something you can't live with.

If it turns out that the employer had no intention of living up to its deal when it made the offer, such as offering a nonexistent job or benefits, then you could have fraud claims along with your breach of contract claims.

So make sure to keep a copy of that job offer. If it's an email, print it and keep it. Keep anything you sign. It may be a contract, and it might come in handy later. It might also contain post-employment obligations you have to comply with such as a noncompete agreement.

If there's something you don't understand in the offer, make sure you get clarification before you accept. Offer plus acceptance equals contract. If the company is bound, so are you. Pay attention to what you are agreeing. If you don't understand it, get legal advice from an employee-side employment lawyer before you accept.

Friday, April 26, 2019

It's Illegal For Employers To Demand You Buy From Them, Or To Not Buy From A Competitor

For some reason, lately I'm running into employers that are firing employees because they are doing business with a competitor or a merchant they don't like. In Florida, and I'm guessing in some other states, this is flatly illegal.

An employer in Florida cannot demand that an employee buy from them or deal with them. Nor can an employer demand an employee not do business with any other company.

Fla. Stat. Sec. 448.03 provides: 
Threat of discharge to compel employee to trade with any particular firm or person; penalty.—Any person or persons, firm, joint stock company, association or corporation organized, chartered or incorporated by and under the laws of this state, either as owner or lessee, having persons in their service as employees, who shall discharge any employee or threaten to discharge any employee in their service for trading or dealing, or for not trading or dealing as a customer or patron with any particular merchant or other person or class of persons in any business calling, or shall notify any employee either by general or special notice, directly or indirectly, secretly or openly given, not to trade or deal as a customer or patron with any particular merchant or person or class of persons in any business or calling, under penalty of being discharged from the service of such person, firm, joint stock company, corporation or association shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
The law provides criminal penalties for officers and agents who violate:
448.04 Penalty for officer or agent violating s. 448.03.—Any person acting as an officer or agent of any firm, joint stock company, association or corporation of the kind and character as described in s. 448.03 or for any one of them, who makes or executes any notice, order or threat of the kind therein mentioned and forbidden, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
In 33 years of law practice, I'd never seen this as an issue before. Now I've seen it twice in a few weeks. So this is my reminder that violating this law is a crime in Florida. Please cut it out.

Friday, April 12, 2019

“BE HEARD in the Workplace” Act Attempts To Fix Sexual Harassment/Discrimination Laws

Don't get too excited. It will probably pass in the House, fail in the Senate, and be vetoed even if it does pass. But still, the “BE HEARD in the Workplace” Act (short for “Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act”) just introduced would be a major step in the right direction on sexual harassment law.

The bill would fix some major issues with existing sexual harassment laws that I've been complaining about for years:

Intern sexual harassment would be illegal: Right now, there is not a single federal law making sexual harassment of unpaid interns illegal. They aren't employees, so Title VII doesn't protect them. New York City, along with Washington, D.C., Delaware, and Oregon, have laws against sexually harassing unpaid interns. Otherwise, interns are currently sitting ducks in the workplace. The law also extends protections to  independent contractors, interns, fellows, volunteers, and trainees, regardless of remuneration or academic credit, and employees of smaller companies (right now it's 15 or more employees, so small employers get a free pass unless there's a state or local law saying otherwise).

Protection for LGBTQ employees: This law would add gender identity and sexual orientation to Title VII protections, clearing up any doubts about whether Title VII currently protects these employees (which I think it already does based on Obergefell).

Damages fixed: While age discrimination cases are currently subject to different damages and all damages are capped, this would eliminate damage caps and eliminate the ageist bias in the current law.

Fixes sexual harassment standard: The law would eliminate the ridiculously difficult-to-prove "severe or pervasive" standard (which management-side lawyers and some courts say is severe AND pervasive), clarify that sexual harassment is a form of workplace harassment, define workplace harassment as a practice that unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment, and identify factors to be used to determine whether a practice constitutes workplace harassment, but also clarify that no single factor alone can determine whether a practice constitutes workplace harassment.

Fixes standard of proof: The law clarifies that employees must only prove that discrimination or retaliation was a motiving factor under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Nondiscrimination Act (right now courts have said that age must be the sole factor in age discrimination cases, and for all it must be both a substantial and a motivating factor).

Statute of limitations: Changes the statute from 180/300 days (depending on the state, which is silly) to file with EEOC to 4 years.

No mandatory arbitration: The law prohibits pre-dispute mandatory arbitration agreements, and creates guardrails for post-dispute arbitration agreements.

Contractor discrimination prohibited: The law reinstates the Obama ExecutiveOrder reversed by Trump that ensures federal contractor compliance with workers’ rights laws, including maintaining workplaces free from harassment and discrimination. 

These are just a few of the key provisions. It's basically my wish list for fixing employment law, so thanks to the bill's sponsors Senator Patty Murray, Congresswoman Katherine Clark, and Congresswoman Ayanna Pressley.

Now, if only it had a chance in he** . . .


Friday, April 5, 2019

Did Your Employer Misrepresent Your Job Or Withhold Vital Information? That May Be Fraud

It’s not unusual that people are duped into giving notice at their job, only to have the offer pulled or find out the job is nonexistent. Some folks get lured into a job with promises of higher pay, better title, specific hours or location, and it turns out that the representations made to lure them in weren’t true. If this happens, you might have a case for fraud.

There are two types of fraud that Florida courts recognize in these situations. The first is a false statement made, knowing it is false, intending that you rely on it. A good example is what happened in Gandy v. Trans World Computer Tech, 787 So. 2d 116 (Fla. 2d DCA 2001). There, an employee alleged that he was induced to terminate his lucrative business as a freelance consultant with the promise of long-term employment as a manager. The employee alleged that, when the offer was made, the company had no intention of keeping him as a long-term employee but rather intended to force him to quit after a division was created. These allegations withstood a motion to dismiss.

So if you leave your job based on an offer that you'll be the manager, only to find out you're the janitor or secretary, said you'd be paid $100K/year and then paid much less, or if you find out you were only hired to be a temp to fill in for someone out on disability or maternity leave, you might have a fraud case. You may also have a breach of contract case, but that's another post for another day.

The other type of fraud is fraudulent concealment, basically, failure to disclose information that the employer has that would have made you decline the offer. A good example is what happened in Telesphere International, Inc. v. Scollin, 489 So. 2d 1152 (Fla. 3rd DCA 1986), where the employer, through a principal, had fraudulently induced an employee to join the company by deliberately failing to inform him that the system he was hired to market would fail and he would be discharged. The appellate court found that the plaintiff had pled the elements of actionable fraudulent concealment: the defendant deliberately and in order to deceive withheld material facts from plaintiff, when there was a duty to disclose, where the party making the representation had superior knowledge in the matter or acted in a confidential or fiduciary capacity, when plaintiff relied on the lack of disclosure to his detriment.

These are just some examples of what would be fraud. I cited Florida cases, but the claims are likely similar in other states as well. So if your employer misrepresented the job or the pay, or withheld vital information, you might have a remedy.

Friday, March 29, 2019

Marco Rubio Introduces Anti-Noncompete Bill In Congress

In a possible sign of the apocalypse, I actually agree with something my state's Senator, Sen. Marco Rubio, has done. I'm stunned but pleasantly surprised that he has introduced something to help working people, despite being the senator for very anti-employee Florida.

Senator Rubio has introduced the Freedom To Compete Act, a bill that would prohibit employers from forcing exempt workers from entering into noncompete agreements. That means no hourly employees would be required to sign terrible agreements prohibiting them from switching jobs for higher wages and better working conditions. No more noncompete agreements for sandwich makers.

The bill, which you can read in its entirety here, has some interesting features:

  • It's an amendment to the Fair Labor Standards Act.
  • It voids all noncompete agreements for non-exempt employees and prohibits employers from entering into, extending or renewing noncompete agreements.
  • The only employees it does not apply to are "any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman."
  • No jail time for violations, but "legal and equitable relief."
  • The Department of Labor can enforce.

It doesn't have any penalties for violations, so employees would have to show damages. Plus most employers just send the nasty-gram to new or potential employers and threaten to sue them, their mother and their dog unless they fire the employee, so the employee is fighting from the position of being unemployed. Most employees can't afford to fight noncompetes. This might help some if they can actually get DOL to assist with enforcement.

Is it perfect? No. Is it a good start? Heck yeah.

Since it was introduced by a Republican, I'd give it slightly better than a snowball's chance of passing. Other attempts by Democrats have failed miserably, so it's good to see something happening on the other side to curtail abusive noncompetes. One Democratic attempt last year would have banned almost all noncompetes. Al Franken's bill after the sandwich noncompete scandal would have banned noncompetes for employees making $15/hour or less and require employers to disclose that noncompetes would be required as a condition of taking a job. This one would actually help more employees than Sen. Franken's bill, so yay.

If you think a Republican doing something pro-employee is a good thing, call and write your senators to ask them to support Sen. Rubio's bill, and tell @marcorubio thanks. Let's encourage pro-employee behavior!

Props to my Senator, Sen. Marco Rubio, for trying to help U.S. working people!


Friday, March 22, 2019

Cities Step Up Worker Protections - Has Yours?


The United States is way behind most other western nations in protecting its workers. While Congress has dropped into paralysis, U.S. cities have stepped in where Congress and the states have failed to protect working Americans. Florida is one of the most anti-employee states in the nation. The cities here could do much to help working people if they had the political will.

Here are some examples of how cities are stepping up to help workers:

Intern sexual harassment: New York City, along with Washington, D.C., Delaware, and Oregon, have laws against sexually harassing unpaid interns. There is not a single federal law banning intern sexual harassment. Title VII doesn’t cover it because they aren’t “employees.” Same with most state laws including Florida. So, yay for sexual harassers. High school and college students are fair game.

Paid sick leave: San Francisco, Oakland, Emeryville, Los Angeles, Berkeley and San Diego; Washington, D.C.; New York City; Seattle, Tacoma and Spokane; Philadelphia; Montgomery County (Md.); Chicago and Cook County; St. Paul, Minneapolis and Duluth); Newark, Jersey City, Irvington, Passaic, East Orange, Paterson, Trenton, Montclair, Bloomfield, New Brunswick, Elizabeth, Plainfield and Morristown; and Austin all have some form of paid sick leave. Eleven states including California provide some form of paid sick leave. Not Florida, of course.

Paid safe days: The cities that provide paid "safe" days, giving time for survivors of domestic violence, sexual assault, and stalking to seek services include: San Francisco, Emeryville, San Diego, Los Angeles, Berkeley and Santa Monica; Washington, D.C.; Seattle, Tacoma and Spokane; Philadelphia; Montgomery County (Md.); Chicago and Cook County; Minneapolis, St. Paul and Duluth; New Brunswick; and Austin.

Salary history: 13 states and 11 cities have banned employers from asking about salary history. The reason behind the legislation is that basing pay on prior salary can lock in pay discrimination. The sponsor of the Philadelphia ordinance explained: “Simply put, when a woman is paid less at the beginning of her career she will continue to earn less throughout her career. By eliminating the question of salary history we will be one step closer to decreasing the wage gap.”

Ban the box:  33 states and over 150 cities and counties have adopted “ban the box” laws. These laws generally prevent employers from asking about applicant arrests or convictions at the beginning of the application process, and only allow inquiries after the applicant passes their initial screening. Why? Because about 70 million Americans have some criminal record, and the majority of them are minorities. An entire class of citizens has been made almost completely unemployable due to criminal records that have nothing to do with their ability to do jobs.

Predictable schedules: San Francisco, Emeryville, San Jose, Chicago, New York, Seattle and Washington, D.C. have ordinances requiring that employers give specified advance notice of work schedules, advance notice of shift cancellations, and/or predictability pay for last minute cancellations. Oregon is the first state to enact such a law.

Paid family leave: 35 cities/counties and 11 states have paid parental leave laws.

Right to vacation: New York City would require most employers to offer 10 days of paid vacation to employees under this proposed ordinance

Firing for just cause: This proposed law would prevent employers in New York from firing on a whim.

Minimum wage: Florida’s legislature has prohibited local ordinances raising minimum wage, and that was just upheld. Sad. Many other cities around the nation have raised minimum wage for their workers.

Some cities that have led the way on employee rights are San Francisco, New York, A list of San Francisco’s very pro-employee ordinances is here. New York’s employee rights page is here.

So talk to your local elected officials about stepping up to help working people. If the state and federal governments won’t help workers, it will be up to the cities to protect them.