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.

Wednesday, September 28, 2011

"Old Mother******" Gets to Take His Age Harassment Case to a Jury, Court Says

It's still not decided everywhere in America, but in the 5th Circuit (Louisiana, Mississippi, Texas) you can now sue your employer for age-based harassment. That's right. Up until now, employers argued that you could be harassed at work due to your age and couldn't do anything about it. And in some states, employers are still trying to make this argument with a straight face. Just another wacky day in employment law.
Here's what the 5th Circuit did. . . .

Read more in The Huffington Post.

Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!

Friday, September 16, 2011

Can My Employer Fire Me Because I Was a Domestic Violence Victim?

If you need time off for medical treatment or to seek an injunction against domestic violence, some state laws and city and county ordinances protect you, but most still don’t. Some states provide that employers must give you a leave of absence to deal with the effects of domestic violence. Other states have laws that protect crime victims if they need time off to go to court. A few states have laws saying you are entitled to unemployment if you have to leave your job due to domestic violence.

If you do have to testify and your state has little or no protection for you, then you might want to ask the prosecutor to subpoena you. Some states prohibit retaliation against witnesses who were subpoenaed to testify.

If you are injured and your employer is large enough, you might also want to seek Family and Medical Leave.

If male and female crime victims are treated differently at work, then you might have a sex discrimination case. For instance, if a male who was mugged is allowed time off, but a female domestic violence victim is not, then there may be a claim under Title VII or your state's sex discrimination laws.

Donna’s tips:

a. Domestic violence victims have to walk a fine line because of the huge numbers of people who will look down upon them and consider them weak. Be careful who you discuss your domestic violence situation with at work.

b. Don’t assume the law protects you from retaliation. Get legal advice if you’re unsure. The police may also be able to tell you whether you’re protected or who can advise you.

c. Don’t just blow off work. Make sure you let your supervisor know you’ll be out and for how long.

d. Don’t delay getting the help you need. No job is worth your life or safety, or the life/safety of your loved ones.

Tuesday, September 13, 2011

Potential Employees Beware: Some Employment Laws Hate Job Seekers

An ugly new trend is spreading in the workplace, and the courts say it's okay. If you're trying to get a job, employers can now discriminate against you in ways that current employers can't.

A Potential Employer Can Retaliate Against You For Suing Your Employer

The latest attack on potential employees comes out of the 4th Circuit, covering Maryland, Virginia, West Virginia and North Carolina. In the case of Dellinger v. Science Applications, the court ruled that a job applicant is not protected from retaliation under the Fair Labor Standards Act. The implications are frightening. Say you work for Scumbag Employer, Inc., which suddenly stops paying employees. You sue. You have the right to do so. You win. Scumbag Employer has to pay up. You're a hero, because your coworkers get paid too. If Scumbag Employer fires you for suing them, that's illegal. But once you decide to leave, beware.

In Dellinger, the court found that. . . . read more in the Huffington Post.

Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!

Friday, September 9, 2011

Can I Sue For Constructive Discharge?

Sometimes, people come to me and say they want to sue for constructive discharge. There’s no such cause of action or claim. Constructive discharge is where an employee quits work for good cause. This means some claims that you were illegally fired (worker's compensation retaliation, retaliation for complaining about discrimination, whistleblower retaliation, adverse action discrimination claims, to name a few) are still allowed if you’re constructively discharged. If you would have a case against your employer had they fired you under the same circumstances, then you will also probably have a case against them if a court finds you were constructively discharged.

Most courts are reluctant to find an employee was constructively discharged. The standard is usually that no reasonable employee would have tolerated the conditions of employment. For instance, I’ve seen sexual harassment cases as extreme as rape that weren’t found to have been so intolerable that the circumstances constituted constructive discharge by the employer.

For unemployment purposes, if the company cuts your pay, changes your job duties in a major way, changes your shift, transfers you to a new location, that may be enough to be deemed cause attributable to the employer. But you’d better be sure before you quit if you want to make sure you’ll qualify for unemployment. Sometimes the unemployment office will have a website or have someone you can call to get information. Otherwise, you’ll probably want to be sure of your rights before you quit.

Donna’s tips:

a. If your working conditions are intolerable, for heaven’s sake look for another job. Try not to quit until you have another job lined up. It’s easier to get a job when you have a job.

b. If working conditions are intolerable due to discrimination, sexual harassment, failure to pay wages, or something protected by law, complain to HR in writing before you quit and give the company a chance to correct the situation.

c. If the work situation is dangerous (rape, assault, unsafe conditions), then get the heck out of there. No lawsuit or potential suit is worth your safety.

Friday, September 2, 2011

Fake Job Offers, Phony Jobs and Employer Fraud

This question from Ask A Manager really struck a nerve for me:

Hi. I recently accepted a job offer via e-mail, handed in my notice with my current employers, a new e-mail then arrived stating my contract was being drawn up, then a few days later I receive a phone call retracting their job offer, what are my rights??? Please help.

You’d be surprised how often this happens. The mistake I see is that you gave notice before you got a signed contract. You shouldn’t give up your job unless your new offer is 100% final. That means contract signed if there is one, background check passed, and any contingencies have occurred.
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. Or maybe you’ve been 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 you in weren’t true. When this happens, you might have a case for fraud.
In order to claim fraud, the statement(s) must been false, and the company had to know they were false or be recklessly indifferent as to their truth or falsity. You must have relied on the false statements and changed your position. The company will probably claim that the person who made the representations believed them to be true at the time. Cases like this can require massive discovery, time and expense.
Another theory you might have to pursue against these unscrupulous employers is tortious interference with your employment relationship. I haven’t seen any cases attempting this type of claim, but it might be viable in your state. Basically, the theory would be that the phony employer interfered with your employment, knowing that you would lose your job, and that they were reckless or negligent in their behavior.
I’d be interested in hearing from other lawyers who have brought or defended this type of case to see what happened.
The sad truth is that, with at-will employment, you could work one day and they could decide you were a “poor performer” or “didn’t fit in.” Mostly, switching jobs is a high-risk activity. Be careful out there. Do your due diligence on the new employer. See if they make a habit of this type of behavior. Try to find out what kind of turnover they have. Speak to current or former employees if you can.
In my view, doing this to someone should be a crime. In this anti-employee environment, I suspect it won’t happen. Still, anyone who convinces someone to leave their job in this economy with pie in the sky promises that turn out to be phony deserves to spend some time behind bars.

Donna’s tips:
a.       Get that job offer in writing. Make sure you have everything you think is essential in it. If the recruiter told you that you’d only work Monday to Thursday and you need Fridays off for a class, either make sure they put it in writing or write them a letter or email confirming the information.
b.      If the job offer is contingent, don’t give notice unless all the contingencies have been met. If you have to pass a background check, wait until they tell you that you’ve passed, then confirm that information in writing. Tell them you’re relying on that information and will be giving notice at your current job. If you get a conditional offer and you need to discuss disability accommodations, get the accommodations agreed to before you quit your job.
c.       Don’t move your house without getting some guarantees that the job will last for a minimum period of time. It’s best to have a contract saying you can only be fired for cause if you’re uprooting your family.