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.