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, June 27, 2014

Are 9 Sexual Harassment Cases And A Naked Dancing Video Cause For Firing? Maybe Not

When AOL Jobs asked me to write a column commenting about Dov Charney's firing from American Apparel, my first reaction was to roll my eyes. Of course it was "for cause," I thought. The founder of the iconic clothing company has been hit with nine sexual harassment charges (that we know of). And then there's the #NSFW naked dancing video showing him dancing with full flappage in front of female employees. It seemed obvious to me that his firing would be considered to be "for cause" under his contract. 
But was it? Maybe not.  
Read my latest column, Are 9 Sexual Harassment Cases And A Naked Dancing Video Cause For Firing? Maybe Not to find out why.

Tuesday, June 24, 2014

What Every Teen (And Parent) Needs To Know About Sexual Harassment At Work

Thinking about a summer job or internship? I bet you didn't know that, if you are an intern, there is no federal law against sexual harassment of interns. Some states have recently passed laws to fix this horrible omission. If you live in New York, Oregon or DC, you're protected. Other places, not so much.

Big problem, right? That makes stepping out into the work world doubly scary. Your high school and college probably didn't prepare or warn you about the possibility of sexual harassment at work and tell you what to do about it.

If you're a teen or young adult new to the workplace, this article tells you what you need to know about sexual harassment at work. If you're a parent, guardian, relative or friend of a teen, make sure they know this vital information before you send them out there into the great wide world.

Read my article What Every Teen (And Parent) Needs To Know About Sexual Harassment At Work to find out what you need to know about sexual harassment. And if you aren't concerned, take a look at my article about the poster boy of sexual harassment of teens at work.

Friday, June 20, 2014

Florida Legalizes Medical "Marijuana" But You Can Still Be Fired For It

Florida's Governor signed a bill legalizing a form of medical "marijuana" called Charlotte's Web this week. The law will go into effect next year. I'm underwhelmed. While it's a bit of a victory for patients covered under this new law (cancer or a physical medical condition that chronically produces symptoms of seizures or severe and persistent muscle spasms), as is typical with Florida laws there is zero protection for employees.

What this means is that, even though Charlotte's Web is "low THC" and thus non-euphoric, so you won't be impaired when using it, you'll still likely fail any drug test if your employer has mandatory drug testing. Heck, here in the Sunshine State your employer can fire you because they didn't like your shirt that day. They can certainly fire you for using legalized marijuana even if it is for a severe disability and recommended by your doctor.

Arizona, Delaware and Minnesota have all passed specific laws stating that legal users of medical marijuana can't be fired for positive drug tests unless they're actually impaired on employer premises or during working hours. It's a sad day when Arizona has better employee protections than, well, anyone. Yet Florida remains one of the worst states for employees in the nation. We're number one! Yay!

There's also a ballot initiative in November that will let voters choose a much broader medical marijuana law that opens up use to people with even more medical conditions and allows doctors to recommend regular marijuana instead of the wimpy cousin that's the subject of this new law. You'd think the ballot initiative authors would have thought to put something in protecting employees, but no. You can read the full text here, and shockingly absent are any employee protections.

Connecticut, Arizona, Delaware, Illinois, Maine, Minnesota and Rhode Island all prohibit workplace discrimination regarding medical marijuana users. I think it's completely irresponsible to pass laws allowing people to use medical marijuana but not protecting their jobs. While Florida's ballot initiative is a start on the road to treating people with disabilities more humanely, we also need to protect their jobs.

Friday, June 13, 2014

The Criminalization Of Employment Law

A new indictment in a trade secret case, where a former employee opened his own business, made me think about something that's been bothering me for awhile, namely, the criminalization of employment law. I did a piece about this a couple years ago called Your Ex-Boss Wants You In Jail. It's gotten worse. Not only are we sending employees to jail for what used to be civil offenses, but the criminalization is completely one-sided. Employees blink wrong, go to jail. Employers can't get tossed in the hoosegow no matter how bad they misbehave.

Here's what The Dallas Morning News says about the case:
The indictment states that Tezock was an employee of Voltaix for about 16 months until September 30, 2005, when he was scheduled to be let go from the company.

During the last month of his employment he was allowed to complete a project from home, working with proprietary company files on his personal computer. It was during this time that the district attorney’s office alleges Tezock made copies of a secret recipe for germane, a valuable chemical used in semiconductors and solar technology.
Speaking through an attorney, Tezock denied the charge that he had stolen plans to produce germane.

A letter released by Tezock’s legal counsel said that he had applied and was granted a patent for his method of germane production in 2009. According to Tezock, Voltaix’s response at that time was to try and re-hire him.

Daniel Therings, a former attorney for Metaloids, said that thereafter Voltaix brought a civil action against the company and Tezock in 2010. Court documents filed in Texas’ fifth district court of appeals show the company asked the court to stop Metoloids from producing germane.

While Therings said the case is still caught up in appeals, he said the court sided with Metaloids. A news brief on the company’s website said Voltaix was ordered to pay the cost of further litigation.
He got a patent for it, but it's their trade secret? Let's assume that this isn't as ridiculous as it sounds. So an employee who uses alleged trade secrets to open his own business is a criminal, despite antitrust laws saying competition is one of the biggest tenets of capitalism. Indeed you can look at all the arguments againstnoncompetes in Massachusetts to see why letting employees compete with former employers is a good thing. Okay, taking trade secrets is bad, if it really happened. So sue the employee for any damages. But a crime?

One employee was sentenced to four years in prison for trade secret violations. Another employee is sentenced to 97 months. There are trade secret convictions and more trade secret convictions.

Then there employees getting convicted for exceeding their authority to access information on computers at work. One guy was sentenced to 41 months under the Computer Fraud and Abuse Act and his sentence was finally reversed on appeal. CFAA prosecutions have been all the rage among employers seeking to toss employees in jail. Yet if you look at the civil cases on CFAA, you can see just how broad this law is and how much employees are at risk if they click the wrong link at work.

 Employers Skate

Then look at the employer side. No criminalization there. Despite attempts to criminalize wage theft, all we get are local ordinances and attempts by Republicans to make even the wage theft ordinances illegal. Wage theft is rampant, and it costs us all money. Several Florida counties have passed ordinances to beef up efforts to go after employers who steal employee wages. They should be throwing them in jail, but no, can’t do that. Heck, Broward County couldn't even use the term "wage theft" in its ordinance because employer groups threw a hissy fit.

Look at employers who violate antitrust laws, which have criminal penalties, by the way, by forcing low level employees who can’t affordto fight to sign noncompete agreements for the sole purpose of preventing competition. Are they being prosecuted for making employees virtual indentured servants? No way. What about eBay, Apple, Google and othersconspiring to violate antitrust laws with no-poach hiring agreements? Criminal prosecutions? Nope. Slap on the wrist.

Egypt just made sexual harassment a crime. We can’t even get federal laws passed making sexual harassment of unpaid interns illegal. That’s right. Our kids have no legal protection against sexual harassment anywhere but Oregon and NY.

Groping teenagers and young women? Not even a civil offense. Stealing employee wages? Not a crime. But starting a competing business against your former employer? That’s a jailing offense.

Seizing Employee Property?

Now employers want to pass a law allowing courts to seize the property of former employees who dare to compete. The Fourth Amendment be damned. How can you fight a case if you don't have the proof? You can't, and that's exactly what employers want. They can shut down employees who dare to compete without lifting a finger. Where's the outrage? Why isn't hell being raised at the prospect of this ridiculous new law?

This makes me mad as hell. Does it make you mad too? Then start raising hell with your legislators. Tell them to stop the one-sided criminalization of employment law. And tell them to say no to seizure of employee property for alleged trade secret violations.

Let's not give up employee rights so easily.

Monday, June 2, 2014

Fox Rothschild Responds To My Post About EEOC Mediators

In all fairness, I wanted to provide an update. I posted Friday that Management-Side Firm Whines Because EEOC Mediators Are Doing Their Jobs. The piece was about a claim made in a survey that EEOC mediators are biased against employers. Fox Rothschild posted the survey in their blog, then posted a guest piece by the author of the survey. I strongly disagreed with this assertion of bias, and explained why.

I then let Richard Cohen, the blog's author, know that I had posted the piece so he could respond. Here's what he said:
Good post. But neither my blog or firm have taken or take that position, or claim to take that position. The blog simply reported, I think faithfully, comments from both sides, without comment from me and without my taking sides. Generally speaking, that's my blog's general tenor.

And Ms. Archer has no association with my firm.

Although your post is likely good PR for us, nonetheless it is inaccurate.

Rich Cohen
In additional communications, Mr. Cohen advised that neither his firm nor he have taken a position on the topic, and that his blog expresses his views, not the firms. I’m delighted to hear that it is not Fox Rothschild’s or Mr. Cohen's position that EEOC mediators are unfairly biased toward employees. I certainly got a different impression from reading their blog posts. It's still concerning to hear these claims made about EEOC mediation, which I think is a worthwhile process.

If a well-respected firm like Fox Rothschild publicizes a study in their blog (and it is in the firm's official blog with Mr. Cohen listed as the author) that claims bias without questioning that study, or stating that their experiences with EEOC mediation were different, I think agreement with the study was implied. If the firm then posts guest a blog reasserting that bias without any positive comment about Fox Rothschild's or Mr. Cohen's own EEOC mediation experiences, I think readers may reasonably assume they agree with their guest's post.

I wonder if their clients and other employers now think that there really is a bias against employers in EEOC mediation. I wonder if employers will hesitate to agree to utilize EEOC's free process, despite the fact that a judge will order them to engage in mediation they'll have to pay for if they are sued. Will Fox Rothschild or Mr. Cohen take an official position as to whether they believe EEOC mediations are biased against employers? Will other management-side firms and lawyers stand up for EEOC?

Stay tuned.