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, November 30, 2012

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.

Monday, November 26, 2012

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

Friday, November 23, 2012

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

Friday, November 16, 2012

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.

Friday, November 9, 2012

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.

Friday, November 2, 2012

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 . . .