Walmart Should Have Listened To Me About Firing Striking Workers

About exactly a year ago, I wrongly predicted that Walmart wouldn't fire their striking workers. The article was called Why Walmart Won't Fire Striking Workers - And What That Means For You. The reason I predicted that they wouldn't fire their workers for striking is that the National Labor Relations Act says even non-union American workers have the right to strike and take other actions to protest and try to improve working conditions, and they can't be fired in retaliation.

Despite my warning that the strikers couldn't be legally fired, at least 23 workers were fired and another 43 were disciplined. Well, the NLRB didn't take that sitting down. They just slapped Walmart hard, announcing they will pursue legal claims against Walmart for the employees, which means these employees may get reinstated and awarded back pay. 

Here's what NLRB said about Walmart's actions: “During two national television news broadcasts and in statements to employees at Walmart stores in California and Texas, Walmart unlawfully threatened employees with reprisal if they engaged in strikes and protests on November 22, 2012.” NLRB also found that, “Walmart stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.”

What this means is we can expect more Black Friday protests, and probably more battles to improve working conditions at Walmart.

Just a reminder - before you run out the door with placards to protest your workplace, the National Labor Relations Act only covers non-supervisory employees, and while it covers most non-government workplaces, it doesn't cover them all. Plus, you have to be part of "concerted activity" with coworkers to be protected. If you're protesting your own working conditions, you aren't protected against retaliation. However, if you are objecting to something that affects at least one co-worker, or with at least one co-worker, then you may be legally protected.

If you are thinking about organizing at work, smaller micro-unions are now allowed. This means that you don't have to organize the whole company anymore, but can organize a specific group of workers. For instance, a court recently allowed a union to organize a group of nursing assistants at a hospital. The employer thought other non-professional employees should be included, but the smaller unit was approved.

If you decide you want to organize a union at work, or want to know more about your rights to discuss and improve working conditions, I suggest contacting a union like AFL-CIO to get some help and legal advice. There are some legal hoops you'll have to jump through if you actually form a union.

Will Recording A Conversation At Work Land Me In Jail?

In light of the arrest of a South Carolina government employee for tape recording a conversation between co-workers, I thought I'd discuss a question I'm asked all the time in my law practice: Can I record a conversation with my employer?

Unfortunately, there's no easy answer to this question, and a mistake can land you in jail. Illegal tape recording can have both criminal and civil penalties. The employee in South Carolina faces up to five years in prison and a $5,000 fine. My advice is almost always: When in doubt, don't.
Still, many employees want to record a boss or HR at work, and there are good reasons to do so. If you have a sexual harasser, it's handy to catch them red-handed. It's hard to deny something a judge or jury can hear in the harasser's own voice. Some employees want to record meetings with HR to make sure they get all the important information or to have evidence of the reason given for termination or discipline. Other employees want to get evidence of discrimination or other illegal practices of the employer.

If you want to know more about recording conversations at work, read my AOL Jobs article here.

Does My Employer Have To Pay Me Even If I'm Illegal?

I received this question from a reader:

I'm in the process to get my green card. I worked for a guy for few weeks. He knew that I didn't have my EAD by that time. He doesn't want to pay me. I have been trying to get my payment over 2 weeks. Yesterday he sent me a text saying "go f**k yourself. if you contact me again I will notify the authorities" What can I do?

The quick answer is that, yes, your employer has to pay you even if you worked without the proper permit or are in the country illegally. If you are a foreign worker in the U.S., you have some hoops to jump through to work legally. Still, that doesn't excuse your employer from paying you for work performed. That being said, wage theft among undocumented workers is very common.

The United States Department of Labor has a program called "We Can Help" specifically directed at helping undocumented workers get paid. The Fair Labor Standards Act, which requires payment of minimum wage and overtime, applies to legal and illegal workers alike.

Undocumented workers, however, will not be able to recover back pay for time not actually worked or be reinstated to jobs if they sue for discrimination, unfair labor practices, or under other employment laws. While employers still can't discriminate based on race, age, sex, etc. the remedies undocumented workers can receive under many employment laws are limited.

Even though undocumented workers have legal rights, filing suit or complaining to the Department of Labor can be risky. There have been reported cases of undocumented workers who stood up to thieving employers only to face deportation. Employers who use this strategy put themselves at risk. Homeland Security is cracking down on employers who hire undocumented workers. Employers who break the law face sanctions including jail time. You might point this out to an employer who tries to blackmail you out of your pay.

Some Florida counties have wage theft laws that also protect undocumented workers. Employers can face double or triple damages if found to violate these wage theft laws. Many states and local governments have additional protections for employees whose employers don't pay wages when due.

If your employer is stealing your wages, contact the Department of Labor or an employment lawyer in your state to discuss your rights.

HR Wants To Meet! What Do I Do?

You get the call or the email and your heart sinks to your feet. HR wants to meet with you. Unless you think a promotion or raise is in the works, a meeting with HR is usually something employees dread. But if you do some basic preparation, you can be ready for anything.

Read my article in AOL Jobs to find out some things HR may want to meet with you about, and what you should do.

ENDA (Banning Sexual Orientation Discrimination) Passes In Senate What It Will Mean If It Becomes Law

ENDA is the Employment Non-Discrimination Act, and the Senate just passed it. I wouldn't get too excited yet, because unless Republicans lose their majority in the House in the midterm elections we aren't likely to see this become law anytime soon. Still, I thought it would be worthwhile to discuss what the law will do (and what it won't do) if passed in the House and signed into law.

Read my article in AOL Jobs to find out what ENDA will do if it becomes law, and what it won't do, despite what detractors are saying.

7 Claims Jonathan Martin May Have Regarding Dolphins Bullying Under Florida Law

Now that America finally woke up and realized that workplace bullying is a serious issue, thanks to the Miami Dolphins situation with Jonathan Martin, who quit after the team refused to do anything after he complained about workplace bullying, I thought I'd share my thoughts on the situation from the perspective of a Florida employee-side lawyer.

As I've written before, there is no state in the nation that has passed any law against workplace bullying. We have zero tolerance for bullying in schools, but nothing to protect employees? What a giant waste of corporate resources and time, to deal with the fallout, morale problems, and loss of good people that bullies cause. It's time to pass a law.

In the meantime, I have some theories about what claims Mr. Martin might have under Florida law if/when he decides to sue over this matter. I recently wrote a piece for AOL Jobs called 5 Ways Your Workplace Bully May Be Breaking The Law (call me prescient - the piece came out less than 2 weeks before the incident) where I talked in general about potential claims employees might have relating to workplace bullying.

While I obviously don't know what really happened, there has been lots of press speculation and reporting on what really happened with Martin. I can only speculate on what claims he might have.

Here are four claims I think Martin might have against the Dolphins:

1. Breach of contract: Surely he has a contract. It must say something about his working conditions. These athletic contracts are huge. If the contract says the Dolphins must provide a safe working environment, it's a straight breach of contract case.
2. Race or age-based harassment: Bullies tend to target the weak and the different. If Mr. Martin was targeted due to his race or because he was "too young" as the reporting tends to speculate, then he might have a discrimination claim. While the Age Discrimination in Employment Act doesn't cover discrimination based on being too young, the Florida Civil Rights Act covers all kinds of age discrimination. Harassment cases require that you report the harassment and give management a chance to correct the situation, which it seems he did, and was told to punch the harasser, which he thankfully didn't do. The questions will be 1. whether it was so severe or so pervasive that it altered the terms and conditions of his employment and 2. whether it was so intolerable that no reasonable person would have stayed. Having quit, he'll have to show that he was constructively discharged, which is tough, but not impossible. It looks like the coaches might have actually encouraged the harassment. If so, the Dolphins may well be on the hook.
3. Assault/battery: If anything got physical and management knew about it, then the Dolphins might be on the hook.
4. Intentional infliction of emotional distress: This is the one I see in all the newspaper articles about what kind of claim he might have but, truthfully, these cases are very tough to win in Florida. He went to the hospital for emotional distress, so he might have some pretty significant damages if he can prove this claim.

I usually recommend against bringing claims against individuals because they're almost always uncollectable even if you win. That's probably not the case against a wealthy football player, so Mr. Martin may have claims against the individual or individuals involved.

Here are 3 claims he might have against his harasser(s):

1. Tortious interference: I wrote awhile back about using tortious interference claims against harassers. Maybe this would be a good situation for that. The question will be whether the harassers stepped outside the scope of their employment. If management really instructed them to do this, then the harassers might argue they were acting within the scope of their jobs.
2. Assault/battery: If it got physical, he can sue for whatever damages he suffered.
3. Intentional infliction of emotional distress: Again, tough in Florida but maybe if things got physical or extreme he could sue his harassers for this.

I'm interested to hear any new facts that come out on this. While I'm sad this happened to Mr. Martin, some good could come out of all this of we get some anti-bullying laws passed as a result. If even a big, tough football player can be devastated by bullying, imagine what ordinary mortals who experience bullying must go through.

So, what do you think? Any other legal theories? Should workplace bullying be made illegal?

How Do I Get Out Of My Noncompete Agreement?

Massachusetts Gov. Deval Patrick has recently announced that he supports efforts to make noncompete agreements unenforceable in Massachusetts. Patrick's Secretary of Housing and Economic Development, Gregory Bialecki, said this about noncompete agreements:

Non-competes stifle movement and inhibit competition and we do not want that. The evidence is clear-we are not seeing the kind of spin-offs and start-ups at the same rate that previously made Massachusetts an enviable model. Individual career growth is good for the Commonwealth: We encourage our talent to be creative, to be innovative, and to network with other talented people. Furthermore, we encourage employers to recruit talented people. However, we send a mixed message: providing the talent needed to support the kind of explosive growth we want in the innovation economy is considerably more difficult if employees are legally unable to move between jobs in the innovation economy.

If you aren't lucky enough to live in California, which rarely enforces them, or Massachusetts if this legal change passes, how do you get out of your noncompete agreement? In my latest AOL Jobs article I discuss the top 7 ways to overcome non-competition restrictions.

My Employer Filed Bankruptcy. Does That Mean They Can't Enforce My Noncompete?

This question was asked on my post Non-Compete Agreements - Top 5 Ways To Get Out of Yours:

My employer has filed for chapter 11 bankruptcy and is reorganizing. Does this also invalidate their employment contracts?

Wayne

This is a good question, Wayne, especially considering how many bankruptcies have been filed in the past few years. I should first say that, being an employment lawyer, what I don't know about bankruptcy law is a whole lot. However, I'll do my best to explain why there's no easy answer to this question. If there are any bankruptcy lawyers out there who want to chime in, I'd love your help answering this.

Executory contracts: Most employment contracts appear to be considered "executory contracts," which are defined as "a contract under which the obligation of both the bankrupt and the other party to the contract are so unperformed that the failure of either to complete performance would constitute a material breach excusing the performance of the other." If it's in this category, then the contract becomes part of the bankruptcy estate, which means it no longer belongs to your employer, but instead belongs to the trustee or the debtor in possession.

Bankruptcy estate: Once it is considered part of the bankruptcy estate, the trustee or debtor in possession will decide whether to assume the contract or reject it.

Contract is assumed: If they assume it, then it remains intact and the bankruptcy estate assumes responsibility for it. That means if your noncompete is part of an employment contract requiring payment of wages and other benefits, the estate has to take these responsibilities on.

Contract is rejected: If they reject the contract, then you can treat it as if they breached it on the date the bankruptcy was filed. Even if the contract is rejected, that doesn't necessarily mean you're out of the non-competition part of it though. Some courts have allowed employers to seek injunctive relief against employees for breaching a noncompete even when the contract was rejected.

One analysis of the case law on these issues is here. In short, it sounds like there's no easy out of a noncompete agreement just because your employer is in bankruptcy. I'd suggest talking to a bankruptcy lawyer in your state about your rights.