My Employment Law Predictions For 2012 (Mostly) Come True

I must be psychic. You may remember my predictions for 2012, done at the end of 2011. I went back over them to see how I did. I was (mostly) right. Here's what I predicted and what actually happened. Next week, I'll make my predictions for 2013.

Prediction 1: Lots of USERRA litigation.

Sure enough, employers didn't want Johnny to march home and get their old jobs back. Returning service members alleged that employers made up charges against them when they got home or simply fired them outright due to their service. An employer raised the ire of the Department of Justice when they reduced military members' pension benefits. In another, DOJ sued when an employer unjustly terminated a service member a year after they returned to work. In a case of first impression, a court found that a release in a severance agreement did not prevent a service member from suing under USERRA. Employers paid out this year when they were caught firing employees for their service.

Prediction 2: Attempts to weaken sexual harassment protections

What I didn't predict was that it would be the military leading the way in failing female workers. Military service members were sexually assaulted and sexually harassed in droves, yet the Department of Defense did little to help female service members. We saw a case where an employer was allowed to fire a female employee because he found her "irresistible" and fired her so he wouldn't sexually harass her. Apparently his wife found inappropriate texts he'd sent her and demanded the employee be fired. And this wasn't sexual harassment? Other cases found not to be sexual harassment: butt slapping by supervisor and making homosexual slurs and using antibacterial wipes around a straight male employee. Courts also made it more difficult to bring class actions for widespread sexual harassment. Sexual harassment victims were ordered to turn over cell phones and social media passwords to support employers' "she asked for it" defensess. In all, a terrible year for sexual harassment victims.

Prediction 3: Courts will weaken anti-retaliation laws

In one court ruling, a Sarbanes-Oxley whistleblower had his claim dismissed when he failed to "approximate the basic elements of a claim of securities fraud." No law degree? No whistleblower claim. Another court found that whistleblowing overseas against a U.S company doesn't count. A U.S. citizen who blew the whistle on illegal activity of a government contractor and who was tortured by U.S. military for his trouble had no remedy according to a federal court.

On the other hand, the President and Congress have enhanced whistleblower protections. The President issued a directive protecting intelligence agency whistleblowers for the first time. Congress passed the Whistleblower Protection Enhancement Act to try to plug some court-created loopholes and expand whistleblower protections.


Prediction 4: No state will pass an anti-bullying law

None did

Prediction 5: The Civil Rights Tax Relief Act will languish again

It did.

Prediction 6: More states will pass laws protecting the unemployed against discrimination

At least 17 states considered legislation to protect the unemployed against discrimination due to the fact that they are jobless. Only two states and Washington DC managed to pass and get laws signed. California passed a law that was vetoed. New Jersey passed a law in 2011. Oregon followed at the beginning of 2012, and no state has passed any such law since. President Obama has proposed the American Jobs Act, which includes a prohibition against discriminating against the unemployed. It didn't pass, at least not in 2012.


Prediction 7: Wage theft laws will start to spread

It's moving glacially, but wage theft laws are starting to happen. Miami-Dade County was the first county in the nation to pass such a law. This year, Broward County, just north of there, passed its own ordinance, to go into effect in 2013. Palm Beach County punted and failed to pass one. A recent study showed that 44 of 50 states have utterly inadequate protections in place to protect employees who are victims of stolen wages. Yet efforts in Houston, Texas; Alachua County, Florida; Shelby County, Tennessee; and the State of New Jersey have so far not passed.

Prediction 8: Employers will gain more rights to enforce noncompetes against employees; antitrust laws will be used to attack noncompetes

Sure enough, employers have continued to use noncompetes to bully employees into staying in terrible jobs, and into bankruptcy if they dare leave. Fortunately, antitrust laws offer a ray of hope. The Department of Justice is pursuing employers who agree not to hire each others' employees for violating antitrust laws. They cite studies showing these agreements suppress wages. Can other noncompete agreements be far behind?


Prediction 9: Confidentiality and trade secret agreements will be used to prevent employees from working for competitors

Employers are using trade secrets laws, confidentiality agreements, and intellectual property agreements to make grabs at everything employees think of or do while they're working for the company, from Twitter accounts to books to doll designs. Plus, courts are continuing to use the "inevitable disclosure" doctrine to find noncompete obligations even where no noncompete agreement exists.

Prediction 10: Employees will wake up and start fighting for their rights

This year gave me a glimmer of hope that American workers would, as Samuel L. Jackson so eloquently put it, "wake the f*#! up." [Note: please don't click that link at work!] We saw nonunion workers at places like Wal-Mart striking. Later, fast food employees followed suit and rose up against abusive employer practices. We also saw a national election where voters said no to putting a so-called "job-creator" in office, despite bullying tactics by his CEO friends who threatened their employees if they reelected the President.

Next week: my predictions for 2013.

Time To Repeal Anti-Communist Discrimination Laws?

Is there any group more irrelevant in America today than communists? Back when Joe McCarthy was in his heyday smoking out suspected communists and socialists, our major rival on the international arena was the Soviet Union. Now that the Berlin Wall is down, the USSR is no more, and the Communist Party in the U.S. has about zero influence on U.S. politics, it might just be time to get rid of some antiquated anti-Communist laws.

I bet you didn't know that Title VII, the law that prohibits discrimination in the workplace, contains this clause:

(f) Members of Communist Party or Communist-action or Communist-front organizations
As used in this subchapter, the phrase “unlawful employment practice” shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor-management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950 [50 U.S.C. 781 et seq.].

Wait? Any action? So Title VII doesn't prohibit sexual harassment against a Communist? It doesn't prohibit race or national origin discrimination against a Communist? That's what the law says, although I haven't seen it used as a defense this way.

WTH? Why hasn't anyone gotten this silly remnant of the Cold War off the books? Well, the State of Nevada is leading the way. The Nevada legislature is taking steps to remove a similar provision from Nevada law.

I did a quick search and found similar provisions in Nebraska, Pennsylvania and Arizona. I'm sure there are more.

Surely the repeal of a law allowing discrimination based on political beliefs is something we can all agree on. It's time to move on past the Cold War and into the new millennium. Let's hear it for Nevada for leading the way.

Job Loss Not Irreparable Harm? In What Universe?

Employers are using noncompete agreements to force employees to stay in lousy jobs with lousy working conditions more and more. The poor employee is put in a situation where, if they leave a crappy job, the employer sends a nastygram to their new employer and threatens to sue unless the employee is fired. Then the employee is left to defend themselves with no job and no money.

What's an employee to do?

Well, they can file a suit against an employer for something called declaratory relief, asking the court to determine their rights. The problem is, there's no quick way to get declaratory relief. By the time a judgment is issued, the employee has spent tens of thousands, if not hundreds of thousands, of dollars and the job prospect is long gone.

Employers, if they even think an employee is about to breach a noncompete, can get an injunction. They can ask the court, on an emergency basis, to order the employee to stop working for a competitor or stop contacting clients. They tell the court that the potential loss of customers, the potential that a competitor will learn their secret ways of doing business, is irreparable harm. The courts are quick to find that any potential dollar loss to employers would be irreparable. As an example, in Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 69-70 (2d Cir.1999) the court found it was ,"very difficult to calculate monetary damages that would successfully redress the loss of a relationship with a client that would produce an indeterminate amount of business in years to come."

Employees don't get the same treatment. A recent case confirms the courts' attitude that loss of a job is not irreparable harm for an employee. In Hyde v. KLS Professional Advisors Group, a case out of the Second Circuit, the court found that “difficulty in obtaining a job is undoubtedly an injury, but it is not an irreparable one” because the employee could be adequately compensated with money damages if they win at trial.

So let's see. Loss of corporate money and relationships: irreparable. Loss of human money and relationships: not irreparable. Nice.

I find this kind of reasoning to be not only specious, but immoral and unjust. The way noncompetes are being handled in the justice system is a travesty. Something has to change, but nothing will until voters rise up and demand at least equal rights for humans as compared to their corporate masters.

Here are just some of the irreparable harms real people suffer when they have their new job yanked out from under them:

• Loss of their homes to foreclosure
• Destruction of their credit
• Legal discrimination based on the fact that they are unemployed
• Legal discrimination based on the fact that they have bad credit
• Damage to their resume with a very short-term job
• Damage to their reputation with the new employer who fired them to get out of being sued
• Emotional injuries suffered from being unemployed
• Loss of insurance and resulting health issues

Sure, rich employees can fight and ultimately win against bully employers trying to enforce illegal noncompetes. But most can't afford to fight. They end up out of their industry a year or two, and many end up unemployed that long. Who pays the cost? Taxpayers suffer the increased cost of unemployment benefits, welfare, healthcare and other costs. We also suffer a damaged economy that much longer.

I would submit that most noncompetes violate antitrust laws and are unenforceable due to the employer having no legitimate interest to protect in enforcement. Yet these bully employers usually get away with it because employees can't afford to fight. Maybe it's time for employees to start contacting the Justice Department about antitrust violations if they can't afford to fight. Would the government step in to help against an employer who wants to prevent competition? I don't know.

Because the courts refuse to recognize the utter devastation job loss will certainly wreak by enjoining employers from interfering with their employment with unlawful and unenforceable noncompetes, Congress and state legislatures need to take action to protect individuals. If you think this is wrong, tell your representatives the law needs to change. Only iff enough people speak up will anyone listen.

Is The Florida Commission On Human Relations A Malignant Force Against Employees?

The Florida Commission on Human Relations is the state equivalent of EEOC. In order to sue under the Florida Civil Rights Act, you must first file a Charge of Discrimination with them and let them investigate. They have a deal with EEOC that, if you file in Florida with EEOC you're automatically filed with them, and vice versa. Truthfully, I rarely deal with FCHR, because I usually file with EEOC.

The Florida chapter of the National Employment Lawyers Association, of which I am a proud member, just issued a scathing report about FCHR. The report refers to the human rights commission as a highly politicized “rogue agency.” NELA calls FCHR a “destructive and malignant force” that they say has trampled on the legal rights of employees for years. They say FCHR staff and leaders have acted illegally or ineptly.

How did a state agency that is supposed to protect employee rights go so wrong?

The trouble, NELA says, begins with a clause in the Florida Civil Rights Act, a "unique feature under which FCHR could prevent a case under FCRA from going to court by making a 'no-cause' finding within 180 days of intake." EEOC does not make a "no cause" finding (I take some credit for this, because they used to, but that's another story). EEOC's finding says, basically, that they are unable to determine whether or not cause exists, and that the employee has the right to sue. FCHR, however, finds "no cause." If they do so within 180 days of filing (and they seem to rush to do this), then the employee loses the right to sue and their sole remedy is with FCHR.

Another problem with the agency is that they have taken a decidedly anti-employee bent. The agency has worked to curtail employee rights under the FCRA. Instead of promoting workplace equality, the agency apparently sees its mission as one to combat frivolous suits. NELA says this: "Top staff of FCHR began describing the effort to combat frivolous discrimination suits as “equally important” as establishing equal opportunity. On its web page, the agency began touting its ability to settle cases for a fraction of their value."

Another issue NELA raises is FCHR's repeated denial that they have jurisdiction over cases:

The agency routinely dismisses cases that fall squarely within the FCRA or the Florida Public Whistleblower Act by falsely claiming to lack “jurisdiction” over them. FCHR thus clears its docket of intakes without even having to give the case a serious reading, let alone having to investigate it or make a determination. This has cleared FCHR’s backlog, but in doing so, it has vandalized the rights of thousands of Floridians and emboldened employers with discriminatory employment practices.

NELA offers these possible solutions:

• Abolish the agency;
• Repeal the statutory provision allowing a “no-cause” finding to impair
access to courts;
• Adopt a range of self-help solutions that can be undertaken by
individuals, as well as efforts to involve the federal government, grand
juries, and the courts as well as the executive and legislative branches.

Of these solutions, I like the option of changing the "no cause" finding to something similar to what EEOC issues the best. FCHR shouldn't be able to deny employees the right to sue. I support EEOC and FCHR if they function as intended: to investigate discrimination (and whistleblower in the case of FCHR) claims, to try to remedy issues before they get to court, and to try to reduce or eliminate illegal employment practices.

By turning the agency on its head, making it an anti-employee and pro-discrimination agency, the State of Florida is doing the opposite of what the legislature intended. I would urge Florida legislators to take a close look at this agency and fix it. For an employee rights organization like NELA to take on a human rights agency, the abuses had to be extensive. The decision to do the report was not made lightly.

Government should protect its citizens, not trample their rights. It's that simple.

No Flu Shot? That's a Firing

Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

ABA Blawg 100

I'm excited and honored to say that this blog was named one of the ABA Blawg 100. Editors of the ABA Journal announced today they have selected Screw You Guys, I'm Going Home as one of the top 100 best blogs for a legal audience.

They chose six Labor and Employment blogs to be part of their top 100.

Now that the editors have made their picks, the ABA Journal is asking readers to weigh in and vote on their favorites in each of the 6th Annual Blawg 100's 15 categories. Go to http://www.abajournal.com/blawg100 to register and vote. Voting ends at close of business on Dec. 21, 2012. I'd sure appreciate your vote if you're a fan of my blog.

Here's what ABA said about the Blawg 100 selection:

"Each year, our choices become tougher. Blogging has become such a staple of
professional communication that keeping up with our own directory of more than 3,500
blogs by lawyers, judges, law professors or even law students is more formidable than
it's ever been," said ABA Journal Editor and Publisher Allen Pusey. "Some of them
have become such permanent, even required, fixtures in our everyday reading that we're introducing the ABA Journal Blawg 100 Hall of Fame to recognize those blogs and
bloggers that have set the standards for this vast, vibrant network for legal news and commentary."

Here's what the ABA Journal says about the five other blogs in the Labor and Employment category, all of which are on my must-read list:

Connecticut Employment Law Blog

Hartford lawyer Dan Schwartz covers the latest developments in Connecticut law as it relates to employers and distinguishes the significant rulings issued by the National Labor Relations Board from the run-of-the-mill ones. And when Schwartz’s firm sponsors free employment law seminars, he will blog the highlights.

Twitter: @danielschwartz


Ohio Employer's Law Blog

Jon Hyman wrote The Employer Bill of Rights (scheduled to come out Nov. 21). The Cleveland lawyer posts every weekday on decisions in Ohio and federal courts related to employees’ and employers’ use of social media, noncompete agreements, and the criteria employers can legally use in hiring and firing decisions. Posts often include pointed advice to employers as well as Hyman’s own takes on the opinions and legislation he covers.

Twitter: @jonhyman


The Delaware Employment Law Blog

“Molly [DiBianca] always has a practical and real-world take on the technology issues facing employers—social media, mobile and otherwise. She is not doom and gloom, and offers employers legal info they need to know to make tech work for their employees.” —Jon Hyman of Ohio Employer’s Law Blog, a partner with the Cleveland firm of Kohrman Jackson & Krantz

Twitter: @MollyDiBi


FMLA Insights

Is time spent filling your prescription at Walgreens covered by the Family and Medical Leave Act? Is leave beyond FMLA an “undue hardship” under the Americans with Disabilities Act? For employers with FMLA concerns, this blog is the place to go. Blogger Jeff Nowak of Chicago’s Franczek Radelet provides nuanced commentary on typical and not-so-typical employment conundrums.

Twitter: @FMLAInsights


Lawffice Space

“Phil Miles has a very entertaining employment law blog, where you can get answers to such burning questions as: Why are lawyers so smart and ridiculously good-looking? And whether calling an employee a jackass is worse than calling him a moron. Even though his posts are frequently funny or odd (in a good way), he also has excellent ‘mainstream’ information as well.” —Robin Shea, author of Employment & Labor Insider and a partner at Constangy, Brooks & Smith in Winston-Salem, N.C.

Twitter: @PhilipMiles


I'm honored to be in such great company! And here's what they said about my own little blog:


Screw You Guys, I'm Going Home

“Too many employees think they know their rights, but don’t,” blogger Donna Ballman writes. It’s the thesis behind her recently released book Stand Up for Yourself Without Getting Fired, and a situation she tries to remedy with her blog. Ballman, who practices out of Fort Lauderdale, Fla., picks apart severance agreements, whistleblower provisions and noncompete clauses, revealing what employees should know about the contracts they sign—and what the company’s attorney was probably thinking when he or she inserted the language.

Twitter: @EmployeeAtty

A Brief Introduction To Labor Law Poster Requirements In The U.S.

I’m taking a small breather this week and have a guest blogger, talking about the important but little-discussed issue of mandatory posters in the workplace. Please welcome my guest, Ivy Liu of Easy Business Posters. This company provides posters to employers that will fulfill state and federal requirements. While you can definitely comb through the various federal and state requirements to do it yourself, companies like Easy Business Posters can make compliance really simple. Here’s the scoop on poster requirements, from an expert.

By: Ivy Liu, Easy Business Posters

For every business operating in the U.S., it is mandatory to display posters related to labor law. Even companies with only one employee must display current federal and state law posters in the work area. Special regulations have been outlined by federal and state governments on the display of required employment posters. It is essential for a company to know about posters required to keep employees well informed about their rights and laws.

Not all companies are required to display each poster. The type of posters that are required to be posted can vary according to the industry, business type and total employees. The regulations pertaining to the posting of posters can also depend on the state, as every state has its own posting requirements. If, during inspection, a company is found not adhering to state and federal regulations, then it might result in fines and penalties for non-compliance.

Place of display: The posters should be displayed in a location where they are easily accessible to the employees and it is possible for all to see them. Some of the most common places where posters are displayed include lobby areas, bulletin boards and break rooms.

Language: Another important consideration that businesses have to keep in mind is that labor law posters should have information, not only in English, but also in languages that all the employees understand. State vs. federal requirements: Labor law posters of states are different from federal posters, as each state has different laws. Information about specific laws of the state is present on these posters and they have to be displayed along with posters of federal law. The U.S. Department of Labor offers an online advisor to small and new businesses and compliance assistance, about requirements related to workplace posters. The posters that are required to be displayed in every workplace include topics like discrimination or harassment, health and safety, insurance benefits for unemployed, minimum wage, along with other emergency information.

OSHA: Posters of OSHA or the Occupational Safety and Health Administration have information related to the safety and health of the employees.

Department of Labor: Posters issued by DOL have detailed content about minimum wage, family leave, disability rights and other such information about legal topics. Apart from the ones mentioned above there are other posters as well that a business might be required to display, according to its type and location.

Keeping current: Businesses are required to not only display the posters, but they should keep them updated as well. Posters that are required to be displayed in employee work areas should be updated from time to time, as the laws concerning safety and health requirements, labor laws and minimum wage are revised every once in a while. Thus it is essential for business owners to keep themselves updated about the latest changes and display the mentioned posters accordingly. To get the latest information about the labor laws and keep oneself updated, it is advised to check government and industry websites regularly. For state posters, you will need to check the requirements in each state where you have a worksite. For instance, New York and Pennsylvania have websites listing their poster requirements.

Not only can you be fined for not complying with poster requirements, but failing to have required posters could be used as evidence in a discrimination, minimum wage, or workpace safety case to prove violations were intentional. While poster requirements don’t seem like they’re a huge deal to employers, failing to comply can have huge consequences.

Author Bio:

As an employee herself, Ivy Liu pays primary attention to her employment rights and studies the employment laws whenever possible. Ivy Liu likes to share her findings and help those who are concerned about employment issues through writing articles on employment posters, minimum wage, workplace security and other topics. For more labor law information, please follow her on twitter: https://twitter.com/MandatoryPoster

Firing Employees Because Obama Was Elected May Be a Felony

I wrote before the election about a group of CEOs who, prompted by their candidate, sent a series of threats to employees that, if President Obama were reelected, they'd have no choice but to (pick one) a. shut down, b. do layoffs, or c. move to another country. I wondered the day after the election why there hadn't been a wave of corporate shutdowns. But one guy actually did what he threatened.

A guy named "David" called into a radio show and said he had laid off 22 of his "mostly Hispanic" employees as a result of the election. He complained they had worn Obama shirts to work. He said, "I explained that to them, and I said, ‘You do what you feel you need to do, but I’m just letting you know this as a warning that this is things I have to think of as a business owner.’”
Raw Story (http://s.tt/1sB4T)

He said he felt comfortable he'd complied with the law. I think he's wrong.

Nevada has election laws that prohibit voter threats and intimidation.

NRS 293.710  Intimidation of voters.

1.  It is unlawful for any person, in connection with any election, petition or registration of voters, whether acting himself or herself or through another person in his or her behalf, to:

(e) Discharge or change the place of employment of any employee with the intent to impede or prevent the free exercise of the franchise by such employee.

2.  A person who violates a provision of this section is guilty of a category E felony and shall be punished as provided in NRS 193.130.

This guy, like the rest of the CEOs who made threats, is clearly firing employees because he believes they voted for President Obama. He may have committed a felony under Nevada law as a result.

If he targeted only Hispanics in his hissy fit, he may also have violated Title VII.

I hope some of his employees find an employment lawyer (or a friendly prosecutor) to pursue this. So, David, how does it feel to have confessed to a crime on the air? I hope it turns out that you have plenty of time to enjoy some free accommodations on the taxpayers' dime.

Legal Marijuana Use Can Still Get You Fired

Now that two states have legalized marijuana altogether and another has decided to allow it for medical purposes, you may be thinking you can finally have the occasional toke if you're in one of the lucky states. But don't bogart that joint just yet.

Marijuana use is still illegal under federal law. That includes medical marijuana use. Even if you have a disability that is protected under the Americans With Disabilities Act, the feds say too bad.

How does this affect your job?

If you use marijuana and your company finds out about it (or you're near someone who smokes and test positive due to secondhand smoke), you can still be fired.

Drug testing: In a recent case, the Washington Supreme Court ruled that their state law doesn't keep employers from drug testing employees and firing them for positive results. Same with a recent case in Michigan against Wal-Mart.

State laws against discrimination: Some states have made discrimination against medical marijuana users illegal. Connecticut, Arizona, Rhode Island, Maine, Colorado and New York all have prohibitions against workplace discrimination regarding medical marijuana users. Other states prohibit licensing and disciplinary boards from penalizing medical marijuana users. Even those states that prohibit discrimination based on marijuana use have exceptions to those legal protections, so be careful to make sure you are legally protected before you light up.

State off-duty activities laws: Some states prohibit termination/discrimination based upon an employee's lawful activities off-duty. These states include California and Colorado, so employers will need to be careful not to violate other related laws as marijuana becomes legal. Other states prohibit discrimination against employees for use of "lawful consumable products" such as tobacco, so the same laws will likely protect marijuana users as it becomes legal in those states.

Americans With Disabilities Act: Although many politicians pound tables yelling about "states' rights," the federal laws and courts still don't recognize the state laws making marijuana use legal. So far, courts have not recognized medical marijuana use as a reasonable accommodation under the Americans With Disabilities Act. More importantly, even though you might not end up in state prison, the feds can still prosecute you for marijuana, so be careful.

While the clear trend is to legalize marijuana, opening up a huge new tax base, eliminating the huge waste of resources spent on prosecuting marijuana cases, and giving relief to severely ill patients, the fact is that you may still be able to be fired for using marijuana even for medical purposes while not at work. The times are changing, but it will take a while for the employment laws to catch up with this important legal trend.

No Bathroom Breaks For You!

One of my most popular posts ever on this blog was the Top 10 Employment Laws You Think Exist - That Don't. In it, I talk about rights employees erroneously think they have, like the right to be fired for a good reason, free speech, the right to work in a place that isn't a hostile environment, and the right to privacy.

In this post, I talk about breaks, which are frequently misunderstood. I said, "No federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it’s not a majority. No law requires bathroom breaks, but it's probably a health issue, so OSHA might protect you if your employer denies bathroom breaks."

My comment about OSHA was a fit of optimism, because I've found nothing in OSHA regulations requiring bathroom breaks. Oh, sure, they require that employers provide bathroom facilities and that they be accessible to employees (not permanently locked). It makes logical sense that they would have to allow employees to actually use them.

Indeed, here's what OSHA says about the requirement to provide toilet facilities:

The sanitation standard is intended to ensure that employers provide employees with sanitary and available toilet facilities, so that employees will not suffer the adverse health effects that can result if toilets are not available when employees need them. Individuals vary significantly in the frequency with which they need to urinate and defecate, with pregnant women, women with stress incontinence, and men with prostatic hypertrophy needing to urinate more frequently. Increased frequency of voiding may also be caused by various medications, by environmental factors such as cold, and by high fluid intake, which may be necessary for individuals working in a hot environment. Diet, medication use, and medical condition are among the factors that can affect the frequency of defecation.

Medical studies show the importance of regular urination, with women generally needing to void more frequently than men. Adverse health effects that may result from voluntary urinary retention include increased frequency of urinary tract infections (UTIs), which can lead to more serious infections and, in rare situations, renal damage. . . . UTIs during pregnancy have been associated with low birthweight babies, who are at risk for additional health problems compared to normal weight infants. . . . Medical evidence also shows that health problems, including constipation, abdominal pain, diverticuli, and hemorrhoids, can result if individuals delay defecation. . . .

I mentioned this when I appeared on NPR this week on the Tropical Currents show. The show was a call-in format, so imagine my surprise when a caller told me he worked for OSHA. He called for another reason, but I asked him about the bathroom breaks issue. He advised me that OSHA directs all issues regarding breaks to the Department of Labor.

That's odd, because the Fair Labor Standards Act, administered by DOL, doesn't require any breaks whatsoever. So an employee seeking help calls OSHA and says, "My employer doesn't let me take bathroom breaks. I have to pee in the potted plant behind where I stand when I have to go." Instead of helping, OSHA directs them to an agency that can't help. And they wonder why people are frustrated with government.

Why isn't being able to take a break to relieve oneself a workplace safety issue? Can anyone at OSHA tell me? They require accessible facilities, but won't sanction employers for denying breaks to use the facilities. In what bureaucratic mind does this make any sense?

Anyhow, it's now official. In my state of Florida and every other state that doesn't have its own laws requiring breaks, there is absolutely no law or regulation that requires employers to give bathroom breaks. Doesn't it make you proud to be an American?

Think it doesn't happen? I had a caller tell me that a security guard they know had to go in the grass (which is a particular problem for women). I've had a bartender actually tell me the potted plant story a few years back. It happens. Some employers are sadistic jerks.

There are some times when not granting potty breaks would be illegal, but we have to turn to discrimination laws for help.

Disability: If you have a disability that requires you to use the facilities more frequently than your work schedule allows, you might be entitled to a reasonable accommodation under the Americans With Disabilities Act.

Pregnancy: If you are pregnant and need to go more frequently, you might be protected under pregnancy discrimination laws (but might not).

Sex: If the potted plant or grass scenario is just fine for men but is not possible for women, then it might be sex discrimination or even sexual harassment considering how much women need to undress to accomplish the task at hand.

Of course, if you're the only one not being allowed to go, or a group is singled out, then other types of discrimination such as age, race, religious, national origin, etc. might be at play.

Isn't the right to relieve oneself with some privacy and dignity a basic human right? The whole thing is barbaric.

There ought to be a law . . .

Can You Be Fired For Supporting A Political Candidate?

In my home state of Florida (why is it always Florida?), a CEO sent an email to all of his thousands of employees saying that, if Obama is elected, they would likely lose their jobs. He didn't threaten to fire them for supporting Obama, but did make it clear that, should Obama win, his employees would suffer dire consequences. Then a Wisconsin employer followed suit. The Koch Brothers did the same.

It turns out that Mitt Romney personally instructed CEOs to use this tactic with their workers.

So, have the CEOs crossed a line? Probably not. At least yet. Here are some things employers can't do during this political season:

Limit Discussions On Which Candidates Would Improve Working Conditions: While employers can certainly prohibit general political discussions and political campaigning at work, the National Labor Relations Act says that private employers cannot prohibit discussions about workplace conditions. Therefore, if employees discuss the employer's lengthy email about why a candidate is better for them as workers, then the employer can't fire employees who voice that the employer's email is full of misleading and incorrect information and that the other candidate is very clearly the better choice for working Americans. On the other hand, employers can force you, as a captive audience, to attend meetings and listen to one-sided political pitches on behalf of candidates unless you live in Oregon, which has the Worker Freedom Act. New Jersey has a similar law.

Discriminate Based On Political Affiliation: Not all states have laws prohibiting this, but many do. States that don't have such laws may have county or city ordinances that specifically prohibit political affiliation discrimination.The Civil Service Reform Act of 1978 prohibits political affiliation discrimination against federal employees.

Discriminate Based on Race, Sex, Religion, National Origin, Etc.: If your employer limits political discussions by some, but not all employees, then they may run afoul of discrimination laws. Much of today's partisan politics is about religion, for instance. Women's issues are hot topics in this political season. The presidential candidates are of two different races and religions. If your employer wants only one point of view expressed in your private sector job, the First Amendment won't help you but discrimination laws might.

Prohibit Labor Union Insignia: While employers can prohibit wearing of most political buttons, shirts and other campaign items, it can't prohibit union insignia. They could probably, for instance, prohibit a button that says, "Obama," but not one that says, "Teamsters For Obama."

Reimburse You For Political Contributions: If your employer says you should write a check to a candidate and agrees to reimburse you for it, they are breaking the law and could even go to jail.

Prohibit Time Off to Vote: Most states, but not all, require employers to let you take time off to vote.


State Laws That Might Help

In some states, these employers' threats may be illegal. For instance, in Michigan, the laws prohibit direct or indirect threats against employees for the purpose of influencing their vote. It also prohibits tracking of political activity.

In Ohio, West Virginia, Pennsylvania and Kentucky, employers are prohibited from posting or handing out notices threatening to shut down or lay off workers if a particular candidate is elected.

In Oregon, it's illegal to threaten loss of employment in order to influence the way someone votes.

In Washington State, it's illegal to retaliate against employees for failing to support a candidate, ballot position or political party.

Some states, like 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.

In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people."

In general, remember that the First Amendment doesn't protect you in a non-government workplace. Be careful out there, and don't forget to vote.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

Why Did the Lawyer Put This in My Severance Agreement?: The Cooperation Clause

This continues my series of posts deconstructing the legal gobbeldy-goop in employment agreements. Today I'll talk about a clause I often see in severance agreements: the cooperation clause. It may look something like this:

Employee agrees to cooperate with Employer in connection with any legal matters, if so requested by the Company, including agreeing to make himself available at the Employer's request to assist with matters requiring the provision of information and/or testimony.

Yikes! My clients never like this and neither do I. And really, what good do most employers think is going to come from having an employee they axed testify on their behalf? My first response is usually to ask that this be taken out of the agreement. However, management-side attorneys love these clauses, so here's what I usually do that will work.

First, I ask for language something like this:

Such cooperation shall be arranged so as not to interfere with Employee's employment and/or business.

That way I don't have to worry about the jerk employer who says the employee has to come in during the key sales meeting, the peak busy time, or their first day at a new job. If the employer wants cooperation, they can arrange it after hours or on a weekend so the employee doesn't get fired from their new job. If they want a deposition, same thing. Depositions can be scheduled to work around times that will get the employee fired from their new job. Without this language, the employer can say, "Tough tookies," when the employee cries foul.

The other language I ask for is that the employee be paid for their time. While they probably can't be paid for their time testifying, I want to make sure my client doesn't become an indentured servant forced to help their former employer respond to complicated discovery requests or submit to endless deposition preparation sessions. Even if it's a deposition, the employee should be compensated for their expenses, such as parking fees, gas mileage, and other out of pocket expenses incurred in this cooperation.

Forcing an ex-employee to work for free probably violates the Fair Labor Standards Act in any event, so even if payment isn't in this clause, an employer who goes too far with their demands might run afoul of the Department of Labor.

Why Did The Lawyer Put This In My Settlement Agreement?: Tax Indemnification

This will continue my series of posts about deconstructing the legalese in employment contracts. This week I'll discuss some language I frequently see in severance or settlement agreements when at least some of the money being paid isn't having taxes withheld. The clause will look something like this:

Employer makes no representation as to the taxability of the amounts paid to Employee. Employee agrees to pay federal or state taxes, if any, which are required by law to be paid by Employee with respect to this settlement. Moreover, Employee agrees to indemnify Employer and hold it harmless from any interest, taxes or penalties assessed against it by any governmental agency as a result of Employee's non-payment of taxes on any amounts paid to Employee or Employee's attorney under the terms of this Agreement.

The reason the employer wants this language is that most employment law settlements are for back wages, future lost wages, or severance, which are wages. Wages must have taxes withheld and the employer has to pay its share of employment taxes on them. If the IRS should come back later and claim more (or all) of it should have been wages, the employer wants the employee to agree they'll pay both the employee's and the employer's share of employment taxes on this.

I'm unusual in the way I request settlement money be paid to clients. I usually ask that the employee's portion be paid as wages. I have a couple reasons for this. First of all, no matter how many times I tell the employee to set aside about 1/3 of the money in a CD that comes due on April 1 so they can pay their taxes, it's too tempting to spend the money. I've had too many people call me crying in April that they can't pay their taxes. Second, if IRS should determine that the money should have been wages, my clients can't afford to pay their employer's share of taxes on top of theirs. It's a risk that I usually don't recommend.

Now, let's go back to this tax clause. I used to not object to it being added as is. If my client asks that some of the money be set aside as something other than wages, they should be willing to take the risk that they got it wrong. (On the other hand, if the employer insists that some portion of it be designated compensatory damages or emotional distress damages so they can save money, I insist they take this language out). I say I used to agree because I actually had one employer, after the fact, argue that this clause meant they could withhold the employee's federal income tax and employment taxes, then not pay them in, plus they said they didn't have to pay in their share of employment taxes on the wages amount.

It's probably an only-in-South-Florida thing, but still, this kind of jerkish behavior means I have to change the language in the future. Here's what I now ask employers to add to this clause:

This provision shall not apply to Employer's obligation to pay in amounts withheld and its share of employment taxes on the amount paid pursuant to paragraph ___.

The blank, of course, is filled with the subparagraph that sets out the amount being paid to the employee as wages.

When the attorney's fees are being paid, I insist they be paid separately because they aren't wages. Under the Civil Rights Tax Fairness Act, which used to be part of the mostly-rejected Civil Rights Tax Relief Act, they are still income to both the client and my firm. However, the client should be able to take an above-the-line deduction on their tax return (whatever the heck that is - ask your accountant) so it comes out as a wash.

Basically, there's no way to structure an employment law settlement so any portion of it isn't taxable, at least that I've ever heard of. There have been efforts to pass the Civil Rights Tax Relief Act for decades, all of which have failed. This law would make emotional distress damages tax-free. If you think it's wrong to tax emotional distress damages, which makes it harder to settle employment cases for both employers and employees, talk to your member of Congress.

In the meantime, expect to see these tax indemnification clauses in your agreements, and beware unscrupulous employers who try to use them to force you to pay their share of taxes.

Employment Lawyers Want to Know: Debate Questions for the Candidates

I've shared my questions for the Presidential and Vice Presidential candidates this week. Four of my fellow employment lawyers did the same thing, and I thought I'd give you some of the highlights.

Questions for President Obama

Eric Meyer asked:

Protection of women's rights in the workplace seems to have been a priority for you since taking office. In 2009, you signed the Lily Ledbetter Fair Pay Act, which effects the statute of limitations for filing an equal-pay lawsuit, into law. The Patient Protection and Affordable Care Act, signed into law in 2010, includes workplace breastfeeding protections.

Should you win reelection, what further changes would you make to workplace laws?

Jon Hyman wanted to know:

Four years ago, you campaigned on a promise to help working families. You promised to expand the FMLA to cover smaller employers, and promised that employers would be required to provide paid sick days to all employees. Yet, four years later, your track record on these issues is spotty at best. The only accomplishment to which you can point in the Lilly Ledbetter Fair Pay Act. What can you say to working families to earn their trust that the next four years will be different?

Robin Shea asked:

We already have Title VII and the Equal Pay Act, both of which give remedies to women if they're discriminated against with respect to compensation, as well as your own Lilly Ledbetter Fair Pay Act. (Title VII and the Ledbetter Act apply to pay discrimination based on race, national origin, etc., as well.) An expansion of the existing law is likely to make employers more vulnerable to lawsuits and class action settlement demands in an already bad economy. Given that, what evidence do you have that any significant part of the current sex-based disparity in pay is caused by discrimination against women, as opposed to voluntary work-life choices made by women and men? In light of studies showing that the so-called "gender pay gap" almost disappears when one controls for voluntary choices, why is this legislation necessary and couldn't it actually have the perverse effect of limiting opportunities for women?

Daniel Schwartz asked several questions, including:

As President, you have barred discrimination in your administration on the basis of sexual orientation and gender identity. Given your actions in your administration, why has there been no progress in Congress on passage of the Employment Non-Discrimination Act, a proposed bill that would bar employment discrimination on the basis of sexual orientation? Moreover, do you support that bill anymore? Your campaign website has no reference to that bill.

Questions for Mitt Romney

Daniel Schwartz asked several questions, including:

On your campaign website,you state that the “first step in improving labor policy will be to ensure that our labor laws create a stable and level playing field on which businesses can operate. As they hire, businesses should not have to worry that a politicized federal agency will rewrite the rules of the employment game without warning and without regard for the law.” Yet, the NLRB is — by its nature — a political agency that shifts its agenda depending on who the President is. Under George W. Bush, it became more pro-business and under Obama, it became more pro-union. Are you suggesting that you would try to de-politicize the NLRB? If so, how? And if not, aren’t the changes you propose simply adding to the political nature of the NLRB?

Eric Meyer asked:

As you know, the Family Medical and Leave Act provides job-security protections for qualifying employees with serious health conditions, loved ones with serious health conditions, or who need time off to care for a newborn. Presently pending in Congress are bills to expand the scope of the FMLA. For example, the Domestic Violence Leave Act would provide leave for workers to address domestic violence, sexual assault, or stalking and their effects. The Family and Medical Leave Inclusion Act would amend the FMLA to permit leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling, grandchild, or grandparent who has a serious health condition.

These efforts would broaden the law. But what if you had the power to repeal the FMLA altogether. Would you do it? And why?

Robin Shea asked:

Actually, several related questions: Do you see the proposed Paycheck Fairness Act and the Employment Non-Discrimination Act, both endorsed by President Obama and the Democratic Party, as hindrances to your party's goals of reining in government regulation and restoring predictability to employers? In the same vein, do you support repeal or scaling back of any of the employment legislation enacted during the Obama and George W. Bush administrations, such the Americans with Disabilities Act Amendments Act or the Lilly Ledbetter Fair Pay Act? How, if at all, do you intend to stop the encroachment of the federal government into the non-union employment relationship?

Jon Hyman wanted to know:

You are on record opposing the Employment Non-Discrimination Act, a bill that would make it illegal under federal law for employers to discriminate on the basis of sexual orientation or gender identity. Yet, you have also publicly stated that you support anti-discrimination and equal rights for all.

Which is it? Are you in favor of equal rights for all, or you do believe that it permissible for employers to deny rights to individuals based on their sexual orientation or their gender identity? And, if the Employment Non-Discrimination Act came across your desk in the Oval Office, would you sign it or veto it?

Questions for Vice President Biden


Robin Shea wanted to know:

Do you see any inherent conflict between the ENDA (assuming it is interpreted this way) and the rights under Title VII of employees to exercise and express their religious beliefs without discrimination, and to religious accommodation? If not, why not? If so, how do you propose to enforce the ENDA while at the same time protecting employees whose religious beliefs may not be completely aligned with the ENDA?

Daniel Schwartz asked two questions, including:

Why do you support the Paycheck Fairness Act? And why is that bill needed in light of all the other laws already on the books preventing pay discrimination, including the Equal Pay Act?

Eric Meyer asked:

The White House touts the Lilly Ledbetter Fair Pay Restoration Act as the first piece of legislation -- employment-law or otherwise -- signed into law during President Obama's first term. The President touts fair pay and equal rights, but there hasn't been a second significant employment law passed yet.

Jon Hyman wanted to know:

Mr. Vice President, Governor Romney has accused your administration of supporting a partisan, pro union National Labor Relations Board. Historically, you have been outspoken of your support of the Employee Free Choice Act, which would provide employees the right to form a labor union without the benefit of a secret ballot election. At a Labor Day rally in Detroit earlier this month, you publicly stated that organized labor is one of the reasons why American is recovering. The American business community would not-so-respectfully disagree with you, and believe that activist federal agencies and labor unions are dangerously holding us back.

What would you say to business owners of all sizes who believe that your administration’s labor policies have stifled their ability to operate in today’s economic climate?

Why hasn't there been a second?

Questions for Paul Ryan

Jon Hyman wanted to know this:

You cite Ayn Rand as your inspiration for getting involved in politics. You even gave copies of her novel Atlas Shrugged as Christmas gifts to your staff. Among other philosophies, Atlas Shrugged endorses the belief that a society's best hope rests on adopting a system of pure laissez-faire government. Philosophically, you would seem opposed to government economic intrusions, yet you voted in favor of both the TARP bank bailout and the auto industry bailout. How do you reconcile your claim to be a fiscal conservative with your pro-regulatory Congressional votes on these two key federal bailouts?

Robin Shea asked:

Granted that a right to organize is implicit in right-to-work and secret ballot laws, and granted that the current National Labor Relations Board and public-sector unions have gone overboard during the current administration, do you believe generally in the right of private-sector workers to organize and collectively bargain? If not, do think that any alternatives are needed to ensure that private-sector workers are protected from exploitation and abuse? If so, what would those alternatives be?

Daniel Schwartz had a couple of questions, including:

Your record on the Employment Non-discrimination Act is, to be blunt, muddy at best. You appear to have once voted for passage of the Act, only after trying to prevent it from coming to the floor. Then in 2010, you are quoted as saying you would support the bill, but only if it didn’t include protections for transgendered Americans. Do you support this bill or a similar federal bill banning discrimination against employees based on his or her sexual orientation? If not, why?

Eric Meyer wanted to know:

Your campaign website claims (here) that "unions drive up costs and introduce rigidities that harm competitiveness and frustrate innovation." Both you and Mitt Romney have been critical of the Employee Free Choice Act, a bill that would have made it easier for employees to unionize. Indeed, you once received a 7% approval rating with the AFL-CIO.

Do you feel that unions today provide any benefit in America's workplace?

And, if given the opportunity, would you repeal the National Labor Relations Act altogether?

There you have it: some questions from management and employee-side employment lawyers for the candidates. If you go to the actual blogs, my fellow attorneys have provided some links and/or discussion of their questions. Now, if only we could get the candidates to answer . . .

Debate Questions for Paul Ryan From an Employment Lawyer

This is part of our series on what questions employment law practitioners would ask of the candidates in the debates. Today, I propose some questions I'd ask Paul Ryan.

During your acceptance speech at the Republican National Convention, you talked about an automobile plant in your district. You said this, " Right there at that plant, candidate Obama said: 'I believe that if our government is there to support you … this plant will be here for another hundred years.' That’s what he said in 2008.Well, as it turned out, that plant didn’t last another year. It is locked up and empty to this day. And that’s how it is in so many towns today, where the recovery that was promised is nowhere in sight." The truth is that the plant announced it was closing and actually closed while George Bush was still President. Why on Earth would you try to put the blame for that plant's closing on President Obama, and why should we believe anything else you say if you're willing to mislead us on something so easily proven to be incorrect?

OK, maybe that question won't be asked in the debate. But seriously, that was egregious. Lawyers know the jury instruction that says if a witness lies about one thing, you don't have to believe anything they say. I think he should have to answer for such a blatantly misleading statement.

How about asking this one:

You initially voted against extending unemployment benefits in 2010, saying it would add to the deficit. Then you voted for extending unemployment benefits when they were coupled with an extension of the Bush tax cuts. Is it only bad to help the unemployed when you're not simultaneously helping the very rich?

I know. I'll never be asked to moderate one of the debates with an attitude like that.

Your family's company relies a lot on union labor. In 2009, in stump speech in your district, you said, “A lot of conservatives just think unions are nothing but bad. That's just not true.... They're people who are just trying to make their lives better, people trying to collectively negotiate a better standard of living for themselves. What the heck is wrong with that?" You've been a supporter of pro-labor bills like the Davis-Bacon Act, which keeps federally funded construction projects from undercutting prevailing union wages. On the other hand, you supported Governor Scott Walker in his fight against Wisconsin's public sector unions and supported cuts to education funding that caused teacher layoffs. If you are elected Vice President, will you support labor unions or will you work with people like Governor Walker to destroy unions?

 At this point, they're probably escorting me forcibly out the auditorium door. Before I leave, I manage to yell out this one:

You voted for the failed 2007 attempt to pass the Employment Non-Discrimination Act, sometimes called ENDA, to protect employees against discrimination based on sexual orientation. Do you still think it should be illegal to discriminate against gays and lesbians?

It's a question that puts him in a no-win situation. His party opposes any legislation expanding gay rights. His support of ENDA was the right thing to do, but it won't win him friends in his party. If he says he's changed his mind, he loses any goodwill he built up with the gay community with his vote.

Debate Questions For Joe Biden From An Employment Attorney

This is part of the continuing series of debate questions being posted by employee- and management-side employment lawyers. These are my questions for Vice President Joe Biden.

Your opponents have supported efforts to roll back union rights and the strength of unions. You said this to the AFL-CIO: "We don't see the value of collective bargaining, we see the absolute positive necessity of collective bargaining. Let's get something straight: The only people who have the capacity -- organizational capacity and muscle -- to keep, as they say, the barbarians from the gate, is organized labor. And make no mistake about it, the guys on the other team get it. They know if they cripple labor, the gate is open, man. The gate is wide open. And we know that too." Why do you think it's important to have strong labor unions in America and what do you think your opponents propose that will harm working Americans?

Then I'd ask:

You said this about your opponents on Labor Day: "Ladies and gentlemen, you, organized labor, are one of the reasons why this country is coming back. Folks, let me make something clear and say it to the press: America is better off today than they left us when they left." How are working Americans better off than they were under George W. Bush?

I might want to know this (from all the candidates, really):

More and more states are passing laws to allow employees to bring their guns to work. They can't be fired for keeping weapons in their vehicles or for telling coworkers they've done so. What kind of legislation, if any, do you think we should have in this country to protect unarmed workers from coworkers who "go postal"?

I'd also want to ask:

President Obama signed the "VOW to Hire Heroes Act" into law on November 21, 2011. The Returning Heroes Tax Credit provides businesses that hire unemployed veterans a maximum credit of $5,600 per veteran, and the Wounded Warriors Tax Credit offers businesses that hire veterans with service-connected disabilities a maximum credit of $9,600 per veteran. This law also fixed a loophole in the law to make sure it is illegal to harass service members at work due to their military service. Why has your administration thought it was important to help veterans and military members get back to work and stay at work?

Debate Questions for Mitt Romney on Employment Issues

This will continue the series a group of management-side and employee-side employment attorneys are doing on what questions we would ask the candidates in the debates. Since I handle employee-side issues, I bet you can predict some of what I would ask Mitt Romney, but here goes.

I'd start with this one.

Four years ago, you advocated letting Detroit go bankrupt rather than bailing out our auto industry during the depths of the recession. You addressed some specific solutions, including dumping existing management, saying, "The new management must work with labor leaders to see that the enmity between labor and management comes to an end. . . . Companies in the 21st century cannot perpetuate the destructive labor relations of the 20th. This will mean a new direction for the U.A.W., profit sharing or stock grants to all employees and a change in Big Three management culture. The need for collaboration will mean accepting sanity in salaries and perks. At American Motors, my dad cut his pay and that of his executive team, he bought stock in the company, and he went out to factories to talk to workers directly. Get rid of the planes, the executive dining rooms — all the symbols that breed resentment among the hundreds of thousands who will also be sacrificing to keep the companies afloat" Do you still believe that management needs to get rid of perks and be more reasonable and fair with labor?

 I'm pretty sure I know the answer, but I'd like to hear him backpedal. I might follow up with this one:

As Massachusetts governor, you worked with Senator Ted Kennedy to develop health care coverage for all employees. Yet you've opposed the strikingly similar provisions of Obamacare. How would you assure that all employees and their dependents get health care coverage?

 That should be fun. Then I'd ask:

During the primary campaign in New Hampshire, you said, “My view has been to allow the minimum wage to rise with the CPI or with another index so that it adjusts automatically over time.” Now you seem to have changed your mind, and say there's no need to raise minimum wage. Which is it? What would you do to bring minimum wage workers over the poverty level, which they are currently about $7000/year under?

I'd probably end with this one:

In 1994, you wrote a letter to the Log Cabin Republicans where you said, "I am more convinced than ever before that as we seek to establish full equality for America's gay and lesbian citizens, I will provide more effective leadership than my opponent. . . . If we are to achieve the goals we share, we must make equality for gays and lesbians a mainstream concern. My opponent cannot do this. I can and will." In 2011, you were asked: "How do you feel about gays serving openly in the military?" and you answered, "That’s already occurred and I’m not planning on reversing that at this stage." As President, are you going to reverse gay rights in the military? Would you support adding sexual orientation to the protected categories in Title VII?

There are lots of other questions I could ask, but I know the answers. The fact is, this election is of huge importance to employees. You can either vote against your own economic interests and can buy into what Fox is telling you, or you can vote with your wallet. For anyone making under a million a year, the choice is pretty clear. I hope the middle class will see it that way.

An Employment Lawyer's Debate Questions for President Obama

This is the first in a series that I am doing along with a group of employment attorneys around the country. Management and employee side attorneys will be providing their own debate questions for the Presidential and Vice Presidential candidates this week. The first candidate is President Barack Obama.

Here are some questions I’d ask the President at the debates if I had a chance:

The very first piece of legislation you signed into law was the Lilly Ledbetter Fair Pay Restoration Act, empowering women to recover wages lost to discrimination by extending the time period in which employees can file claims. You’ve also advocated for passage of the Paycheck Fairness Act, which would have required employers to demonstrate that any salary differences between men and women doing the same work are not gender-related. Plus, you convened a National Equal Pay Task Force to ensure that existing equal pay laws are fully enforced. Why do you feel so strongly about the need for pay equity in America and what do you think about the Republican party’s strong opposition to your efforts toward pay equity?

Then I’d probably ask:

Your opponent wrote an editorial saying we should let the automobile industry go bankrupt rather than bail them out during the worst part of the recession. Do you think the bailout was worth it, and are you glad you saved over a million jobs and supported an industry that has added hundreds of thousands of new jobs when most industries are cutting workers?

I’d follow up with:

You’ve said that you believe people who work full time should not live in poverty. Before the Democrats took back Congress, the minimum wage had not changed in 10 years. Although Congress did raise the minimum wage during your administration, the minimum wage’s real purchasing power is still below what it was in 1968, and full time minimum wage workers are mostly below the poverty line. You’ve said you want to further raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit. Why do you think it’s important to make sure that full-time workers can earn a living wage that allows them to raise their families and pay for basic needs such as food, transportation, and housing?

Then I’d ask:

You repealed Don’t Ask Don’t Tell, which limited gay and lesbian Americans’ right to serve in the military and be honest about their sexual orientation. You’ve also instructed the Justice Department to stop enforcing the Defense of Marriage Act, and you are in favor of the Respect for Marriage Act, which would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as other couples. Why do you think it’s important to treat gays and lesbians with respect and to end discrimination against them, and what more will you do to ensure equality for all Americans?

I’d end with:

Most Americans probably think they’re entitled to some sick time off of work, yet three out of four low-wage workers have no paid sick leave. You’ve said you support efforts to guarantee workers seven days of paid sick leave per year. Why do you think it’s unfair that a single mom playing by the rules can get fired or lose wages because her child or she gets sick, and what do you plan to do to ensure paid sick leave for all American workers?

There are, of course, lots more questions I could ask. I think the choice between the candidates as far as workplace issues is crystal clear.


Here's another perspective, from Robin Shea, a management-side employment lawyer.

Ground-Breaking Wage Theft Program Needs Modification

I attended what was supposed to be my first hearing under Miami-Dade County's ground-breaking wage theft ordinance yesterday. I say it was supposed to be my first hearing, because it didn't actually happen for me, nor did it happen for quite a few of the taxpayers who attended seeking justice from the County.

Here's how the County says things are supposed to work:

If a settlement between you and the employer cannot be reached, SBD will attempt to serve the employer notice of the complaint via certified mail. This notice allows the employer to respond to the claim within 21 days of receipt. You also have the option of retaining the services of a court appointed process server to ensure delivery of notice, if certified mail sent by SBD is undeliverable.

In my case, the employer definitely got notice of the claim. So far so good. Here's what's supposed to be next:

Administrative Hearing Process

If the employer does not respond within the 21 days and SBD has confirmation of receipt of the notice, either through U.S. Postal Service or process server, we will schedule the case for the next available hearing date. (Upon request by either party, a one-time continuance of the case may be granted and scheduled for the next calendared administrative hearing.)

We had a hearing set before and the employer got a continuance, thus proving they got notice. More good news, but it caused a month delay.

We finally got the new notice and we double-checked the day before to make sure the hearing was going on as planned. I'm wearing a cast boot due to a rip in a tendon, which we advised them of, and asked if the hearing was canceled or continued that we be notified before I had to hoof it to Dade, park in downtown Miami, and walk the long way through the county building. We got a written confirmation and no cancellation notice. We felt pretty good.

Here's what should have happened:

At the time of the hearing, both the claimant and the employer will have the opportunity to present their cases. If the Hearing Officer determines that a wage violation has occurred, he or she may order the employer to pay liquidated damages to the claimant of up to three times (3x) the amount of wages claimed, as well as payment of administrative costs associated with conducting the hearing to the County payable to the Board of County Commissioners.

Final Orders will be sent to all parties. A prevailing claimant may record a final order or seek post-judgment release through the Miami-Dade civil court system. At this stage, the County’s (SBD) administrative responsibilities at this point have been fulfilled and the file will be closed.

None of the rest happened. Instead, we got to the hearing, waited over an hour, only to find out that the County sent the employer another certified letter, this time with the second hearing notice. The rules say nothing about needing a second certified receipt. Indeed, in the court system regular mail is considered perfectly good service for any notices once the original complaint is served. Better yet, the courts in Florida have gone mostly to email service, which is free.

The result: employers have figured out that the ordinance is really easy to circumvent. All they have to do is refuse to sign the certified mail notice. Their former employee, whose wages they stole, has to take off work, show up, wait hours, pay $12 or more for parking, only to be told they have to start over.

THE SOLUTION IS EASY

This was incredibly disappointing to me, because I've been such a fan of Miami-Dade's ordinance and have encouraged other counties to adopt similar programs. This is a problem that can be solved easily.

1. Any service after the initial service of the complaint should be by first class mail or email. It's way more cost-effective, so this change alone will save taxpayers thousands of dollars in wasted postage.

2. If, for any reason, the hearing is canceled or continued, participants should be told as soon as possible. If one party didn't get notice (such as the first class letter comes back returned or the email bounces) then let the other party know the day before. If the County doesn't know until the last minute, tell the parties who show up as soon as they arrive. The hard-working staff and hearing officer were clearly frustrated. They had been working from 9 a.m. until past 5 p.m. But at least 1/4 of the time I was there was spent calling people up who had waited over an hour only to be told the hearing wasn't going to happen. The hearings would go much faster (and the taxpayer/voters who show up wouldn't be as upset) if the bad news could be delivered as soon as they get there. The hearing officer wouldn't have to explain and apologize for 5 - 10 minutes for each person. Instead, the staff could tell people when they sign in and not waste valuable hearing time.

3. Use the savings in certified mail to hire more staff. The people working for Miami-Dade County trying to get thieving companies to pay their employees' hard-earned wages are clearly trying, but they were frazzled. They need help. Hire someone to handle sending the notices, confirming with the parties, and notifying parties of any changes or cancellations.

With these minor tweaks, the Miami-Dade County Wage Theft Program should be able to go more smoothly (and alienate fewer voters - is anyone on the Commission listening?)

Why Did The Lawyer Put This In My Employment Contract?: The Termination Clause

In yet another attempt to explain the legalese that lurks in your employment contracts, today I'll talk about some of the language you might see in the contract you sign when you're first hired: the termination clause. It's something you don't really want to think about when you're all excited about a new job offer, but it's almost always in there.

You're most likely to see something like this, if not in a contract or offer letter, then in your handbook:

You agree and understand that your employment is at-will.

Your eyes probably glazed over and you didn't think about this. But the next time you are handed a contract to sign that says this, I suggest you think about it seriously. What this means is that you agree you can be terminated for any reason or no reason at all. If your new boss is in a bad mood three days after you start, even if you gave up a steady job of 5 or 10 years to take this new offer, you're out of there with no severance at all. Especially if you're moving, leaving another job, or are a hot commodity (you have an expertise, a degree, experience or something else that makes you able to pick and choose), I suggest you try to negotiate a better clause than this one.

A slightly more acceptable clause:

You agree that the Company may terminate your employment by giving 90 days' notice. If the termination is for cause, the Company may terminate your employment without notice.

 At least in this one, the company has to give you some notice, or pay out the notice period as severance. The clause might have more or less notice, depending on what you negotiated, but the notice is important. It's also important to define what "cause" for termination will be. If you leave it up to the company to determine whether or not your performance is up to par with no way to measure, then you might as well be at-will.

What's concerning about a clause like this one is sometimes people spend lots of time negotiating the length of the agreement. Say you negotiate a contract with a one year term, with automatic renewals at the end. You think you've assured you have something steady for at least a year. But this clause completely negates that one year. Whatever notice the company puts in here that they have to give, that's likely how much they'll have to pay out.

Even better would be:

This agreement may only be terminated for cause. In the event of termination for cause, the company shall give notice of the alleged cause and give you 30 days to cure the problem before termination.

You still need to worry about defining what constitutes cause, but with this clause you have a chance to fix things if the company thinks you're messing up. If they fire you for no cause, they have to pay out the rest of the contract. That's great if you have lots of time left on it, but if you don't, you might have been better off with the provision above. Still, if I have my druthers, I'll pick this one over that. At least you'll have time to prove yourself, so your move won't be a complete hardship.

If you have lots of leverage, or if the employer wants you bad enough, you might get lucky and get a clause like this:

In the event of termination, the company will pay you 6 months of severance.

Notice it says nothing about cause or no cause. With this one, it doesn't matter how much you mess up. As long as you haven't breached the contract in some way, the employer has to pay out your severance no matter the reason for termination. This kind of clause is especially good if you have a noncompete. If you have to stay out of the industry 6 months, they should pay you 6 months so you can survive. If they want you to stay out longer, you should try to negotiate a longer payout.

Even though you don't want to think about getting fired or laid off, you have to if you want to survive in this economy. If you have any leverage at all to negotiate a better contract, the termination clause is one of the most important clauses to get right.