Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, July 27, 2012

Top 13 Things Not To Say To An Employment Lawyer

You think you have a great case against your employer. You’ve done your research and have found an attorney you think is just right for you. You reach out to the lawyer and they say they aren’t interested. You try another. No go. What went wrong?

It may just be that you don’t have the winning case you think you do. But it might be something you said. There aren’t a lot of employee-side employment lawyers out there. There are fewer with experience. Most experienced employment lawyers are busy. While they certainly want good cases, that doesn’t mean they’re sitting by the phone waiting for you to call.

Here are the top things to say to get an employment lawyer to turn down your case, no matter how good it is:

This case is easy money for you: If it’s so easy, what do you need a lawyer for? Could it be the four years of college, three years of law school, and the years of experience in employment law? There’s no such thing as “easy money” in employment law. In fact, most employment plaintiffs lose their cases. Your lawyer will have to work hard for you. If the case settles early on, it’s probably because the lawyer has a good reputation and because they convinced the other side your case had merit. Don’t insult the lawyer off the bat.

I won’t settle for less than a million dollars: Good luck. Most employment laws have caps on your recovery. Even if there are no caps, few cases bring in the really big bucks. You’ve just told the lawyer you’ll be difficult and unrealistic when it comes time to talk settlement. In fact, most plaintiffs who refuse a settlement offer do worse at trial than if they had accepted the offer. The lawyer wants to know you’ll listen to them if they recommend a settlement.

They’ll settle to avoid the publicity: Yeah, right. Probably not. Many people think this, and it just isn’t true. I find sometimes the more the publicity, the less likely they are to settle. While it’s true that defendants who refuse to settle and lose average about a $1.1 million loss for their error, they also know that employment cases are tough. Your lawyer will have to convince the attorney on the other side that your case has merit. Plus, your lawyer can’t threaten to go to the media (or the police) about your case, because that would be extortion.

I’ve interviewed 10 other lawyers: Okay, why didn’t any of them take your case? Either your case is a turkey or you’re trying to play the lawyers against each other. If you come across as arrogant, you can turn off the lawyer and their staff. It’s fine to talk to other lawyers, but you don’t need to try to pit them against each other. When clients tell me about other lawyers, I usually tell them that the other lawyer would be a fine pick. The employment law community is a small one and we usually know each other.

The other lawyers I talked to quoted a cheaper price: Then hire them. If the lawyer you’re speaking to is expensive, it’s probably due to experience. If you want a less expensive lawyer, hire them. Don’t insult the lawyer’s rates by trying to beg for a discount.

My last lawyer tried to sell me out: Doubtful. If your lawyer worked on a contingency or partial contingency, it was in their best interest to get you the best deal possible. It’s more likely you were unrealistic about the merits of your case and the settlement amount your lawyer suggested. If you were difficult to deal with for one lawyer, why would another lawyer want to take over? If you’ve been through multiple lawyers, it might be you, not them.

Your staff told me _____: I sit right next to my office manager, who handles incoming calls, and it’s funny what potential clients try to tell me she said to them when I’ve heard her side of the conversation. Whether they claim she told them the wrong fee, something incorrect about their case, or anything else I know she didn’t say, that person now has zero credibility with me. Don’t try to convince the lawyer you were told there was no fee when there was, a lower fee than was quoted, or anything you know isn’t true. Your lawyer needs to trust you. If you prove you’re a liar before you walk in the door, odds are they won’t be interested in your case.

I want a pro se lawyer: What you’re asking for is free work. You should probably talk to Legal Services or Legal Aid. Being a lawyer isn’t a hobby. Most of us would rather spend time with our families than be in the office. We practice law to pay our mortgages and other bills. You wouldn’t ask a doctor to work for free. Why do you expect a lawyer to? While some lawyers offer free consultations, most don’t. Many legal services are done on a flat fee or hourly rate. Contingency work is where the lawyer takes a percentage of the recovery. Even on a contingency, you’ll probably be responsible for any court costs (filing fees, court reporter fees, mediator fees, etc.) If you want a lawyer who works on contingency, ask if they do. Just don’t ask them to work for free.

I know you told me the fee on the phone, but I just wanted to talk to you first: Try that one with your doctor. If you were quoted a fee, don’t show up and waste the lawyer’s time by trying to talk them down or into working for free.

I forgot about my appointment (or my car ran out of gas, my dog threw up, and any other lame excuse for a no-show): If you can’t be bothered to respect the lawyer’s time, then don’t expect them to be interested in you as a client. They will assume you’ll also be AWOL at depositions, hearings or even trial. The lawyer set aside their valuable time to meet with you. Don’t no-show. If you decide to cancel, tell them so they can fit someone else in.

I didn’t fill out the questionnaire: I’ve even had some potential clients refuse to give me the name of their company and, in one notable instance, the client’s name. The lawyer has a questionnaire for a reason. It’s not busy work. Do your best to answer all the questions. You wouldn’t tell a doctor you don’t need to fill out your medical history, would you? (Okay, one potential client who was never an actual client for obvious reasons told me he refused with his doctor too).

I lost all my paperwork (or didn’t bring it, or have it here wadded up in this garbage bag): If you have documents the lawyer asked for or that you know are vital to your case, take care of them. Bring them to your appointment. Organize them so you can find what you need. If you can’t be bothered with your own evidence, why would any lawyer want to spend time on your case?

I’ll do the work for you: You show up with 20 binders, 10 of which are legal research. You tell the lawyer you will do the legwork and the research. You just need someone to sign the pleadings. When did you graduate from law school again? While most lawyers like clients who are involved in their own case, don’t insult the lawyer by telling them you know better or can do just as well as they can. If you’re Mike Ross from Suits (genius fake lawyer on TV), then represent yourself. Otherwise, let your lawyer handle the case.
If you want to hire a lawyer, be respectful. Treat them like a professional. Be nice to their staff too. If the secretary warns the lawyer that a potential client is going to be a PITA (figure it out or Google it), you probably won’t get in the door.

Once you hire a lawyer, you should do your best to maintain a good relationship. It’s amazing how many people think it’s a good idea to be nasty to their own lawyer. This is the person whose advice you want to follow, and you want to alienate them? Would you be nasty to your doctor and your accountant?
If the lawyer asks you to provide documents, write a statement, respond to discovery requests, attend a deposition or hearing, then do it. They can’t help you if you won’t help yourself.

If you find yourself doubting what your lawyer is telling you, get a second opinion. If you stop trusting the lawyer you hired, get another one. Just make sure the problem is them, not you. A recent study says half of all employment law plaintiffs thought their lawyers were incompetent or worked against them. Could it be that some of those plaintiffs were unrealistic from the beginning about the costs, merits, and settlement possibilities in their cases?

With some research and cooperation on your part, I hope you will have a good experience with your employment lawyer. Good luck!

Wednesday, July 25, 2012

How Do I Prove I'm Paid Less Than My Male Co-Workers?

A recent article in Newsweek discussed the continuing pay gap between men and women, and suggested some reasons why women still make less than their male colleagues. Another recent story discussed how female doctors are paid less than male doctors. I'm not going to argue here whether or not the pay gap is real. Instead, I want to discuss that, at least in some workplaces, women are paid less than men for the same work. The Newsweek article contained a disturbing statement: "But in many workplaces, discussing pay is frowned upon; in some, it's a dismissible offense. So, like Ledbetter, women often don't know when they're getting paid less than men." Lilly Ledbetter, the pay discrimination victim who lost her case and inspired a law, found out about how much less she made than her male colleagues when she got an anonymous note.

If you aren't lucky enough to get a note from someone brave enough to tell you that you're a victim of discrimination, how do you go about proving pay discrimination? Here are eight ways you can find out if your male colleagues make more than you for the same work:

To read more, see the rest of my article in AOL Jobs.

Friday, July 20, 2012

Are You Entitled to Overtime Pay? Probably

You may have read about the recent Supreme Court case saying pharmaceutical representatives aren’t entitled to overtime because they are outside salespeople. That’s because they fit within one of the narrow exemptions to the Fair Labor Standards Act, which is the law requiring employers to pay overtime to most employees who work over 40 hours per week.

            The truth is, most employees are not exempt. That means you are probably entitled to be paid overtime if you work over 40 hours/week. Just because you’re paid a salary doesn’t mean you aren’t entitled to overtime. Your company can’t offer compensatory time (or “comp time”) instead of paying you. And they can’t average your hours over two or more weeks either.

            If you aren’t exempt from overtime, you are entitled to be paid at time and a half for any week you work over 40 hours.

Here are some of the types of employees who are exempt from overtime if they are white collar workers (blue collar workers and first responders are not exempt):

Executives: If you’re paid a flat salary of at least $455/week, and your primary job duty is managing either the company or a department/subdivision, you may be an exempt executive. You must supervise at least two full-time employees, and have the authority to hire and fire them, or at least make recommendations on hiring and firing that are seriously considered. If you’re the Vice President of Operations supervising 100 employees, you’re probably exempt, but they can call you the Grand Poobah of the Shipping Department and it won’t make you exempt if you don’t actually supervise anyone.

Administrators: If you’re paid a flat salary of at least $455/week, and your primary job duty is office or non-manual work directly related to management or business operations of your company or your company’s customers, you may be an exempt administrator. Your job must involve using discretion and independent judgment regarding matters of significance. For example, a store manager may be exempt, but the cashier is almost certainly not.

Learned Professional: If you’re paid a flat salary of at least $455/week, and your primary job duty is performing work requiring advanced knowledge, predominantly intellectual, and the consistent exercise of discretion and judgment, you might be an exempt learned professional. Your advanced knowledge must be in a field of science or learning and be obtained through a prolonged course of instruction. As an example, lawyers are exempt, but paralegals are not; RNs are exempt but LPNs are not.

Creative Professional: If you’re paid a flat salary of at least $455/week, and your primary job duty is the performance of work requiring invention, imagination, originality or talent in a recognized art or creative field, then you might be an exempt creative professional. As an example, investigative reporters are exempt but reporters who rewrite press releases or who write standard recounts of public information by gathering facts on routine community events are not.

Computer Employee: If you’re paid a flat salary of at least $455/week, if you are paid on an hourly basis, you’re paid at least $27.63 an hour and you’re a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field, you might be an exempt computer employee. Your primary job duty must be applying systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; or design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; or design, documentation, testing, creation or modification of computer programs related to machine operating systems; or a combination of these.

Outside Sales: If your primary job duty is making sales, obtaining orders or contracts for services or use of facilities and you regularly work away from the company’s place of business, you might be an exempt outside salesperson.

Highly-compensated Employee: If you make $100,000 or more, at least $455/week of which is on a salary basis, and you regularly perform at least one of the duties of an exempt executive, administrative or professional employee, you may be an exempt highly-compensated employee.

Motor Carrier: If you are a driver, driver’s helper, mechanic, or are involved in vehicle safety or a motor vehicle used as transportation for compensation on public highways in interstate or foreign commerce then you may be exempt as a motor carrier and are instead governed under the Motor Carrier Act of 1935 instead.

Seasonal Amusement or Recreational Workers: If you work in an amusement or recreational establishment that doesn’t operate for more than seven months in any calendar year, or if its average receipts for any six months of the year weren’t more than 33 1/3% of its average receipts for the other 6 months of the year, you may be an exempt seasonal amusement or recreational worker.

These are some of the main exemptions. There are lots more, such as live-in domestic workers, car and boat salespeople, and movie theater employees.

Confused? So are most employers, which is why many get it wrong. Fortunately, the Department of Labor has online resources to help. You can start with the handy-dandy Overtime Security Advisor that can guide you through the exemptions and requirements. The Occupational Index is an alphabetic listing of many occupations and whether they are exempt or not.

You can’t legally waive any part of the Fair Labor Standards Act, so if your company policies or your employment contract say otherwise, you still may have the right to overtime. And you almost always have to be paid minimum wage, so if you’re working 100 hours a week and making $455/week, your employer is probably breaking the law.

The consequences of violating the overtime requirements are that your employer might have to pay double the amount owed you, plus attorney’s fees and costs. When in doubt, contact an employee-side employment attorney in your state to find out your rights.

Friday, July 13, 2012

Top Six Illegal Policies In Your Employee Handbook

Your employee handbook contains lots of policies and procedures you’re supposed to read and follow. But many handbooks contain policies the National Labor Relations Board (NLRB) considers illegal. NLRB is usually thought of as the agency that regulates all things union: elections, collective bargaining agreements, and unfair labor practices, to name a few. But I bet you didn’t know that they also probably regulate your employer unless you work for the government. That’s right: whether or not your workplace is unionized, the National Labor Relations Act (NLRA) applies to just about every private workplace.

Many employee handbooks contain policies that violate Section 7 of the NLRA, which says: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” NLRB has a new web page that describes its enforcement efforts regarding concerted activities of employees.

Here are just some of the policies NLRB considers to be illegal that may well be in your handbook:

At-Will Employment: Your handbook probably says your employment is at-will. But in a recent complaint the NLRB filed against Hyatt Hotels Corporation, the NLRB found that an acknowledgement in the handbook saying that the only way to change at-will employment was by a written statement signed by the employee and a Hyatt officer was so broad that it implied that unionization was futile. The provision is probably similar to your company’s at-will policy:
I understand my employment is "at will." This means I am free to separate my employment at any time, for any reason, and Hyatt has these same rights. Nothing in this handbook is intended to change my at-will employment status. I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt's Executive Vice-President/Chief Operating Officer or Hyatt's President.

In order to retain flexibility in its policies and procedures, I understand Hyatt, in its sole discretion, can change, modify or delete guidelines, rules, policies, practices and benefits in this handbook without prior notice at any time. The sole exception to this is the at-will status of my employment, which can only be changed in a writing signed by me and either Hyatt's Executive Vice President/Chief Operating Officer or Hyatt's President.
Arbitration: Many employers have policies requiring employees to arbitrate disputes with the company. However, if the company policy says you are waiving your right to a class action, or if it otherwise prohibits employees from filing a NLRB complaint, NLRB says it violates the law.

No Discussion of Wages: Employers try to prohibit employees from discussing and comparing their wages. But prohibiting discussion of wages violates the NLRA. Employees must be allowed to discuss working conditions, including wages. That’s a really important right if, for example, you think you’re a victim of discrimination.

Nondisparagement: Does your company say you aren’t allowed to say negative things about the company, whether online or otherwise? Again, this probably violates your right to discuss working conditions.

Confidential Information
: Most companies have a policy that you must keep confidential information confidential. But if that prohibition keeps you from sharing personnel information, revenues, expenses or training materials, it may also violate your right to discuss working conditions.

Social Media: If the company social media policy says you aren’t allowed to discuss or disparage the company in social media, that may well violate your right to complain about working conditions with coworkers. There have been a slew of cases where NLRB has recently found illegal firings due to Facebook postings and other social media issues. Policies that prohibit “offensive,” “demeaning,” or “inappropriate” comments are likely overbroad. Some states have passed laws against demanding your social media passwords, and there's federal legislation pending as well that may protect you from this type of intrusion.

So what do you do if you think your employer’s policies violate the law?

Your first step is to contact your regional office of the National Labor Relations Board. If they believe your employer is violating the law, they can talk you through filing a Charge Against Employer.

You have 6 months from the event or conduct to file. That means if your company comes out with a new policy, or if you are required to sign a form acknowledging your receipt of the handbook or agreement to the policies, you have six months from that date. You are entitled to have an attorney represent you before NLRB but you can’t recover your attorney’s fees if you win.

NLRB will investigate, which means they will interview you and you’ll have to sign an affidavit. They’ll also interview your employer and any witnesses. Then they’ll decide whether or not to issue a complaint against your employer. If they do, NLRB acts on your behalf to proceed against your employer. They will also help try to settle the case.

Unfortunately, your only remedies are reinstatement with back pay and back benefits if you were fired, plus an injunction to prohibit your employer from breaking the law in the future. NLRB might also require your employer to put up a poster advising coworkers of their rights.

The National Labor Relations Act is an under-utilized law protecting employee rights. Your employer may not understand that it applies to them. If you’ve been fired for violating one of these illegal policies, you may have a remedy.

Wednesday, July 11, 2012

10 Tricks Employers Use To Cheat Workers Out Of Overtime

Most employees are entitled to be paid overtime for any hours worked over 40 in one week (and no, your employer can't average two or more weeks together). Unless you work for a tiny and purely local employer, or fall within a specific exemption, your employer is legally required to pay you time and a half for all overtime worked. But some employers, in an attempt to cut costs, are using tricks to avoid paying overtime. As reported by AOL Jobs and USA Today, the number of lawsuits filed by employees alleging that they were owed overtime pay is skyrocketing; there was a 32 percent increase last year, compared to 2008.

As an employment attorney, I've seen lots of maneuvers, but below are the 10 most common tactics that I've seen employers use to cheat workers out of their hard-earned overtime pay:

To read more, see my article on AOL Jobs.

Friday, July 6, 2012

Can You Be Fired If You Are Sick After Your Vacation? Probably

I returned from a lovely three week trip to Italy with the souvenir that keeps on giving: pneumonia. It started out with sniffles. By Monday afternoon, I had a fever. Tuesday, I was coughing. On the Fourth, instead of enjoying barbecue and fireworks, I ended up at the urgent care. He counted back the days of incubation and thinks I got it somewhere on beautiful Lake Maggiore: maybe the public ferry or at a marketplace. Exposure to illness can easily happen when you travel: the airport, bus, train, or any public place can be full of contagion.

I asked the doctor if I could go to work Thursday and he said absolutely not. I was contagious and had to stay home. I couldn't go back until Monday. He said he'd write me a note.

Fortunately, I didn't need a note. I'm my own boss. And I'm not heartless enough to go in and contaminate my staff. But I wondered: what would happen to my clients if they came back from their vacations sick?

The answer is sad. They're probably fired or disciplined. I have seen this time and again. Many bosses are royally ticked if you return from your fun in the sun only to say you're too sick to work. Contagion be darned. They don't want to hear excuses. They want you in the office.

There are a few laws that may protect you if you're sick right after vacation. Here are some:

Family and Medical Leave Act: If your company has at least 50 employees within 75 miles of your office, and you've worked at least a year, you may be covered by FMLA. This means if you miss work for a serious medical condition requiring medical treatment, you must be restored to the same or an equivalent position when you return. It's a bit tricky, but you should notify HR as soon as you can if you think you qualify for FMLA. There are forms for your doctor to fill out. While the company is supposed to tell you if you report an illness that should be covered, many don't, either because they don't understand the law or don't care.

Americans With Disabilities Act: My pneumonia is probably not a covered disability under the ADA. But if you have a chronic respiratory condition or some other medical condition that the pneumonia exacerbates, then you might be protected under ADA.

Health Laws: If you work in an industry that has laws prohibiting you from working when you have a communicable illness (such as health care or food service) then you may be protected as a whistleblower if you refuse to violate the law and come in to work.

OSHA: If you are contagious, you might be protected under the OSH Act, which requires that employers provide a safe workplace. And if your company makes someone contagious come in, you may be entitled to refuse to work with them (but beware: the ability to refuse to work is limited, so contact OSHA before you take drastic measures).

My recommendation? Unless you're flat on your back or in the hospital after your vacation, go in sick. If you're contagious with something dangerous, such as swine flu, plague, or smallpox (as opposed to the common cold or flu), get a doctor's note and submit it to your supervisor and HR. If you are still ordered to come to work, go in, even if you have to go in on a stretcher. Don't give them an excuse to say you were insubordinate. (A well-placed cough or two in the jerky boss's direction might be called for in that case).

Even if your boss tells you to stay home, that doesn't mean they can't hold it against you later. Your review might say you had excessive absences or question your loyalty. If you aren't legally protected, there isn't much you can do except to try not to miss any more work for awhile (and don't put in for another vacation for a long time).