Why, why, why is it always Florida? In an issue similar to the hanging chads of yesteryear, Florida is in a state of confusion yet again, this time over gay marriage licenses. In every Florida county where a court has ruled on the issue, the courts have ruled that failure to marry gay couples violates the Constitution. Our Republican Attorney General, Pam Bondi, has thrown a tizzy of legal filings everywhere from counties that ruled to the 11th Circuit Court of Appeals to the Supreme Court.
Bottom line so far is that, while the 11th issued a temporary stay of the ruling compelling gay marriage licenses to issue, that stay ends January 5. They refused to extend it. The Supreme Court has also just refused to stay the ruling. So gay marriage becomes officially the law in Florida January 6. Right?
Here comes the confusion. A law firm, Greenberg Traurig (and shame on them), advised the clerks of court that they might face criminal penalties if they issue gay marriage licenses on January 6. They told the clerks that the case legalizing gay marriage only applies to Washington County. Other lawyers say they're dead wrong. I think they're dead wrong. Every single public official in Florida swears to uphold the Constitution. Refusing to issue the licenses violates the Constitution. If they aren't removed from office for refusing to uphold the Constitution in one of these lawsuits,
As a result, couples planning to get licenses January 6 will need to pay close attention to the law and legal wrangling over the next couple weeks.
Flagler County is the only county so far that has said it is definitely issuing licenses January 6. Kudos to Gail Wadsworth for upholding her oath. UPDATE: AP reports that Osceola County is the only county that responded affirmatively when they asked, so whether or not Flagler County will issue licenses is unclear. Orlando Mayor Buddy Dyer has announced he plans to officiate a wedding on January 6. Osceola County has been sued as a result of their announcement.
So far, the following clerks have indicated that they are "ready" to issue licenses January 6 (Whatever that means - are they going to do it? Still unclear):
Broward County
Monroe County
The Monroe County clerk says she wants to be the first clerk to marry a gay couple, so hopefully she'll actually do it and break the ice.
Collier County is still undecided. AP says 6 clerks are undecided, but didn't say which 6.
The following clerks' offices have said they will not issue gay marriage licenses January 6 (unless a court makes them do it), and thus are on my official Roll Of Shame (UPDATE: AP says 46 responded to them that they would not issue licenses, but they didn't share their list):
Miami-Dade County
Pinellas County
Hillsborough County
Pasco County
Hernando County
Lee County
Duval County
Manatee County
Flagler County
Brevard County
No official word yet from Washington County as to whether and whey they will comply with the ruling in the case that started all the confusion. Here's their website, if you want to follow the issue yourself. UPDATE: Last word was they were seeking clarification as to whether they had to issue one license, only to the couple who sued, or issue to anyone who applies. Facepalm. In the meantime, I'll keep updating you on this important issue.
Tuesday, December 23, 2014
Friday, December 12, 2014
States With Pro-Employee Laws: No Firing For Legal Off-Duty Activity
Here in Florida, like many states, you can be fired for pretty much anything as long as it isn't discrimination, whistleblowing, making a worker's comp claim or some other protected activity. That means you can be fired because your boss doesn't like your hobby, your friends, the fact that you prefer whiskey over beer - just about anything they don't like about your non-work activities.
Most states allow this kind of nonsensical firing, and business owners have to pay higher unemployment taxes as a result of other employers' whims. Taxpayers pay the cost too, in higher taxes due to the need for public assistance, healthcare and a whole host of other services. It makes no sense at all.
But some states have seen the light. They have laws that prohibit employers from firing employees for legal off-duty conduct. Do you live in one of these states? Here they are:
California: CA Labor Code § 96 and 98.6 say no employee no employee can be discharged or otherwise discriminated against for lawful conduct occurring during nonworking hours away from the employer's premises. An employee who is discharged, threatened with discharge, demoted, suspended, or discriminated against in any manner in the terms and conditions of his or her employment is entitled to reinstatement and reimbursement for lost wages and benefits.
Colorado: Colo. Rev. Stat. § 24-34-402.5 says it's illegal to fire an employee because that employee
engaged in any lawful activity off the employer's premises during nonworking hours unless the restriction relates to a bona fide occupational requirement or is reasonably and rationally
related to the employment activities and responsibilities of a particular employee or
a particular group of employees; or is necessary to avoid, or avoid the appearance of, a conflict of interest with any of the employee's responsibilities to the employer.
New York: N.Y. Labor Code § 201-d says employers can't make hiring or firing decisions, or otherwise discriminate against an employee or prospective employee because of legal use of consumable products or legal recreational activities outside of work hours, off of the employer's premises, and without use of the employer's equipment or other property.
North Dakota: N.D. Cent. Code § 14-02/4-03 (2003) says it's illegal for an employer to fail or refuse to hire a person, to discharge an employee, or to treat a person or employee adversely or unequally with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or a term, privilege, or condition of employment, because of participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer.
Some other states protect employees against firing due to the use of lawful consumable products and others protect only tobacco use. Why not more protection? Do we really need Big Employer monitoring our off-duty activities? If you don't like the thought of being fired because your employer thinks you shouldn't eat meat, shouldn't smoke, shouldn't do yoga, or shouldn't be a furry, then it's time to push for legal change in your state.
Most states allow this kind of nonsensical firing, and business owners have to pay higher unemployment taxes as a result of other employers' whims. Taxpayers pay the cost too, in higher taxes due to the need for public assistance, healthcare and a whole host of other services. It makes no sense at all.
But some states have seen the light. They have laws that prohibit employers from firing employees for legal off-duty conduct. Do you live in one of these states? Here they are:
But first, a pitch. This blog has been honored by being named one of the American Bar Association's top 100 blogs for the 4th year. They're asking for your vote for the top blog in each category. Please take one minute to vote for this blog in the Labor and Employment category. It takes one minute to register and vote. Now back to the post.
California: CA Labor Code § 96 and 98.6 say no employee no employee can be discharged or otherwise discriminated against for lawful conduct occurring during nonworking hours away from the employer's premises. An employee who is discharged, threatened with discharge, demoted, suspended, or discriminated against in any manner in the terms and conditions of his or her employment is entitled to reinstatement and reimbursement for lost wages and benefits.
Colorado: Colo. Rev. Stat. § 24-34-402.5 says it's illegal to fire an employee because that employee
engaged in any lawful activity off the employer's premises during nonworking hours unless the restriction relates to a bona fide occupational requirement or is reasonably and rationally
related to the employment activities and responsibilities of a particular employee or
a particular group of employees; or is necessary to avoid, or avoid the appearance of, a conflict of interest with any of the employee's responsibilities to the employer.
New York: N.Y. Labor Code § 201-d says employers can't make hiring or firing decisions, or otherwise discriminate against an employee or prospective employee because of legal use of consumable products or legal recreational activities outside of work hours, off of the employer's premises, and without use of the employer's equipment or other property.
North Dakota: N.D. Cent. Code § 14-02/4-03 (2003) says it's illegal for an employer to fail or refuse to hire a person, to discharge an employee, or to treat a person or employee adversely or unequally with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or a term, privilege, or condition of employment, because of participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer.
Some other states protect employees against firing due to the use of lawful consumable products and others protect only tobacco use. Why not more protection? Do we really need Big Employer monitoring our off-duty activities? If you don't like the thought of being fired because your employer thinks you shouldn't eat meat, shouldn't smoke, shouldn't do yoga, or shouldn't be a furry, then it's time to push for legal change in your state.
Friday, December 5, 2014
States With Pro-Employee Laws: No Use-It-Or-Lose-It Vacation
You've probably seen the commercial. A kid says, in response to the study that over 400 million vacation days go unused, "That's the stupidest thing I ever heard." Yep. Stupid. Odds are, if you don't take those vacation days, you lose them.
Employers that have policies saying vacation is paid out at the end of employment must comply with those policies. In most states, employers can refuse to pay out unused vacation at the end of employment by implementing a use-it-or-lose-it vacation policy. Many employees are rudely surprised when they find out the employer that wouldn't let them use their vacation days also doesn't have to pay them out. Most employers can also require employees to use their vacation by a certain date, usually the end of the year, or lose it. That means you'd better use those vacation days in the next few weeks if you're like most employees.
However, some states protect their citizens by barring use-it-or-lose-it vacation policies. Here are some states that look out for their voters:
Illinois: Under 820 ILCS 115/5; 56 Ill. Adm. Code 300.520, employers have to pay out accrued vacation pay at the end of employment unless a collective bargaining agreement with a union provides otherwise. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. 56 Ill. Adm. Code 300.520(e).
Indiana: While employers can have a use-it-or-lose-it policy in Indiana, employers have to pay out accrued vacation if their vacation policy is silent on the issue. See Indiana Heart Associates, P.C. v. Bahamonde, 714 N.E.2d 309 (Ind. App. 1999); Die &Mold, Inc. v. Western, 448 N.E.2d 44 (Ind. App. 1983).
Louisiana: Vacation pay is earned wages, so policies requiring the forfeiture of earned vacation pay are not enforceable. Beard v. Summit Institute, 707 So.2d 1233 (La. 1998). However, they may implement use-it-or-lose-it policies saying employees must use by a certain date or lose the vacation.
Maryland: Like Indiana and Louisiana, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.
Massachusetts: Employers have to pay out accrued vacation pay at the end of employment. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. MA Atty. Gen. Advisory 99/1.
Michigan: Similar to Indiana, Louisiana and Maryland, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.
Montana: In Montana, an employer can't take away earned vacation pay or fail to pay it out for any reason. MT Dept. of Labor and Industry FAQ; See Langager v. Crazy Creek Products, Inc., 287 Mont. 445; 954 P.2d 1169 (Mt. Sup. Ct. 1998).
Nebraska: Nebraska law prohibits employers from failing to pay out earned vacation or from policies saying employees must use vacation by a certain date or lose it. See Neb. Rev. Stat. § 48-1229(4); Roseland v. Strategic Staff Management, Inc., 272 Neb. 434, 722 N.W.2d 499 (Neb. Sup. Ct. 2006); Neb. Dept. of Labor FAQ.
New York: If the policy is silent on the issue vacation must be paid out at the end of employment.
North Carolina: If the policy is silent on the issue, vacation must be paid out at the end of employment. N.C. Gen. Stat. § 95-25.12.
North Dakota: Employers can't require an employee to forfeit accrued or earned vacation leave upon separation from employment, regardless of the reason. ND Admin. Code § 46-02-07-02(12). However, they can implement policies saying vacation must be used by a certain date or be lost.
Ohio: While use-it-or-lose-it policies are allowed, vacation must be paid out at the end of employment if the policy is silent on the matter. See Fridrich v. Seuffert Construction Co., 2006 Ohio 1076 (OH App. 2006).
Oregon: Oregon is another state that allows such policies but requires employers to pay out vacation if the policy is silent on the issue.
Rhode Island: Employers must pay employees who have completed at least one year of service for any vacation pay accrued in accordance with company policy or contract on the next regular payday for the employee when they leave. RI Stat. § 28-14-4(b).
West Virginia: If the policy is silent on the matter, vacation has to be paid out at the end of employment. See Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (WV Sup. Ct. 1999). Otherwise, employers are allowed to implement such policies.
Wyoming: In Wyoming, an employer cannot require an employee to forfeit accrued or earned vacation on leaving. WY Dept. of Employment FAQs.
Some vacation policies are an earned benefit under ERISA, so employers that have no use-it-or-lose-it policy and fail to pay out earned vacation may risk a lawsuit under ERISA.
If you want to know about your state's vacation laws, a great state-by-state summary is here. For more on employee benefits, read my article Top Nine Things You Need To Know About Your Employee Benefits.
Employers that have policies saying vacation is paid out at the end of employment must comply with those policies. In most states, employers can refuse to pay out unused vacation at the end of employment by implementing a use-it-or-lose-it vacation policy. Many employees are rudely surprised when they find out the employer that wouldn't let them use their vacation days also doesn't have to pay them out. Most employers can also require employees to use their vacation by a certain date, usually the end of the year, or lose it. That means you'd better use those vacation days in the next few weeks if you're like most employees.
However, some states protect their citizens by barring use-it-or-lose-it vacation policies. Here are some states that look out for their voters:
Before I tell you which states, I want to make a plug for you to vote for this blog in the ABA Blawg 100. I'm honored to announce that Screw You Guys, I'm Going Home is listed as the only employee-side blog in the Labor and Employment category, and now the voting is going on for the top blog in each category. It takes only a minute to register and vote. I'd sure appreciate your help. Now, back to the post.California: Under Cal. Labor Code §227.3, all accrued vacation must be paid when employment ends. California also prohibits policies that make employees take vacation by a certain date or lose it. In one California case, an illegal policy cost the employer millions.
Illinois: Under 820 ILCS 115/5; 56 Ill. Adm. Code 300.520, employers have to pay out accrued vacation pay at the end of employment unless a collective bargaining agreement with a union provides otherwise. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. 56 Ill. Adm. Code 300.520(e).
Indiana: While employers can have a use-it-or-lose-it policy in Indiana, employers have to pay out accrued vacation if their vacation policy is silent on the issue. See Indiana Heart Associates, P.C. v. Bahamonde, 714 N.E.2d 309 (Ind. App. 1999); Die &Mold, Inc. v. Western, 448 N.E.2d 44 (Ind. App. 1983).
Louisiana: Vacation pay is earned wages, so policies requiring the forfeiture of earned vacation pay are not enforceable. Beard v. Summit Institute, 707 So.2d 1233 (La. 1998). However, they may implement use-it-or-lose-it policies saying employees must use by a certain date or lose the vacation.
Maryland: Like Indiana and Louisiana, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.
Massachusetts: Employers have to pay out accrued vacation pay at the end of employment. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. MA Atty. Gen. Advisory 99/1.
Michigan: Similar to Indiana, Louisiana and Maryland, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.
Nebraska: Nebraska law prohibits employers from failing to pay out earned vacation or from policies saying employees must use vacation by a certain date or lose it. See Neb. Rev. Stat. § 48-1229(4); Roseland v. Strategic Staff Management, Inc., 272 Neb. 434, 722 N.W.2d 499 (Neb. Sup. Ct. 2006); Neb. Dept. of Labor FAQ.
New York: If the policy is silent on the issue vacation must be paid out at the end of employment.
North Carolina: If the policy is silent on the issue, vacation must be paid out at the end of employment. N.C. Gen. Stat. § 95-25.12.
North Dakota: Employers can't require an employee to forfeit accrued or earned vacation leave upon separation from employment, regardless of the reason. ND Admin. Code § 46-02-07-02(12). However, they can implement policies saying vacation must be used by a certain date or be lost.
Ohio: While use-it-or-lose-it policies are allowed, vacation must be paid out at the end of employment if the policy is silent on the matter. See Fridrich v. Seuffert Construction Co., 2006 Ohio 1076 (OH App. 2006).
Oregon: Oregon is another state that allows such policies but requires employers to pay out vacation if the policy is silent on the issue.
Rhode Island: Employers must pay employees who have completed at least one year of service for any vacation pay accrued in accordance with company policy or contract on the next regular payday for the employee when they leave. RI Stat. § 28-14-4(b).
West Virginia: If the policy is silent on the matter, vacation has to be paid out at the end of employment. See Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (WV Sup. Ct. 1999). Otherwise, employers are allowed to implement such policies.
Wyoming: In Wyoming, an employer cannot require an employee to forfeit accrued or earned vacation on leaving. WY Dept. of Employment FAQs.
Some vacation policies are an earned benefit under ERISA, so employers that have no use-it-or-lose-it policy and fail to pay out earned vacation may risk a lawsuit under ERISA.
If you want to know about your state's vacation laws, a great state-by-state summary is here. For more on employee benefits, read my article Top Nine Things You Need To Know About Your Employee Benefits.
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