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.

Monday, August 13, 2018

Is It Legal To Record A Conversation At Work?

In light of Omarosa's recordings of conversations with her bosses at the White House, I thought I'd discuss a question I'm asked all the time in my law practice: Is it legal to record a conversation at work?

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. 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.

Here's what you need to know about recording conversations at work:

One-party consent: In most states, as long as you're a participant in the conversation, you can record at will. South Carolina is one of these states, but the employee who was arrested taped a conversation between other employees, not herself. That's not allowed, even in one-party consent states

All-party consent: Thirteen states, California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Oregon, Pennsylvania, and Washington, require all parties to the conversation to consent to being taped. Hawaii, a one-party consent state, requires all-party consent if the device is installed in a private place. A Florida government employee was arrested a few years ago for giving a reporter a tape recording of a conversation she had with a supervisor. She cut a deal for community service, so we don't know how her trial would have turned out. These laws are sometimes referred to as "two-party consent" laws, but if there are three people in the conversation, all three must consent. For a detailed state-by-state survey of workplace surveillance laws, Justia has a summary of laws by state that can give you more details on your state law. The Digital Media Law Project has another handy state-by-state resource here but it is out of date.

Expectation of privacy: You can almost always record conversations in public areas, because the courts say there's no "expectation of privacy" in those places. Whether or not you are a party to the conversation, if it's out there in public, you may be allowed to tape it. Here's where it gets tricky. Many courts have held that there's little or no expectation of privacy in the workplace. There are cases saying, for instance, that a party to a conference call has no expectation of privacy.

As an example, cases in my home state of Florida on the expectation of privacy at work say things like: "Society does not recognize an absolute right of privacy in a party's office or place of business." "[A]lthough defendant may have had reasonable expectation of privacy in his private office, that expectation was not one which society was willing to accept as reasonable or willing to protect." "Society is willing to recognize a reasonable expectation of privacy in conversations conducted in a private home. However, this recognition does not necessarily extend to conversations conducted in a business office."

The problem I have with relying on cases like these to tape at work is the use of weasel-words like "necessarily" and "absolute" and "reasonable." These cases are very fact-specific and that means a court could still find that your boss or coworker had an expectation of privacy. If you get it wrong, you can end up in jail. That Florida employee who was arrested for taping in a public building should give you pause about relying on these "no expectation of privacy" cases too heavily.

Retaliation: If you record a conversation to document illegal discrimination or illegal harassment (we're talking harassment or discrimination based on race, age, sex, religion, national origin, disability, pregnancy, or other protected category, not bullying), then you may or may not be protected against retaliation by your employer. The courts have split on this issue. Depending on your state, your employer may be allowed to fire you for recording a conversation at work (even though they can't fire you for reporting discriminaiton).

Getting permission: One way to get around problems in all-party consent states is, when in doubt, pull out your recorder and turn it on. Say, on the recording, "You don't mind if I tape this do you?" If the other person or people say they don't mind, keep recording. If anyone objects, turn it off. Pull out a pad of paper and a pen and take good notes instead. 

Creative ways around: I had a case where one creative employee knew the harasser was approaching her office so she called a friend and put her on speaker to listen. That way she had a witness. Even taking notes helps bolster a case. Your notes can be evidence. 

Other evidence: Don't forget to save things like text messages (take screen shots and print), emails, Snapchat and other social media. Don't let that stuff be auto-deleted or lose it when you drop your phone in a toilet. It's your burden to prove your case, and losing evidence can be held against you. Have nothing in writing and no witnesses? Your own testimony is evidence. If you come across as credible, that could be enough.

To summarize, you can probably tape a conversation at work that you're part of as long as you live in one of the 37 one-party consent states. You can also possibly tape a conversation that's in a public area (lobby, office or conference room with doors open, stairwell). You can maybe tape a conversation in the office behind closed doors. If you get it wrong, you're in possible criminal trouble, so be careful. Even if you get it right, you can probably be fired for the recording.

Friday, July 27, 2018

Can You Be Fired For Taking Vacation? Yep.

I'm on vacation, and so are many Americans. You shouldn’t have to worry about your job while you’re on vacation. Or should you? A recent survey found that 49% of Americans are taking no vacation this summer. Sadly, 52% did not use all their vacation days last year, and 24% have taken no vaction in at least a year.

But you're not one of these sad cases. You’ve earned three weeks of vacation, and wow, did you work for it. You put in for your three weeks, got it approved, and planned your trip. You have non-refundable tickets to your dream cruise. A week before you leave, you mention that Jane will be covering for you while you’re gone. Your boss says, “Oh, you were serious about taking vacation?” You nod, meekly. You ask a coworker what she thinks he meant. You find out that the last three people who went on vacation were fired.

Should you be worried? The short answer is: yes. There is no law requiring an employer give you any paid vacation. I hear stories all the time of people fired a few days or a week into a scheduled vacation, or the day they get back. Even worse, they’re fired the day before they’re scheduled to leave. They were counting on the vacation pay to cover the cost of the trip. Now they’re left in the lurch.

Vacations are good for you and good for employers. They keep morale higher, prevent employee burnout, reduce stress, and keep you healthier. The good news is that most employers won’t fire you for taking your vacation.

Still, the fear of being fired for taking vacation is justified. If you live anywhere but Montana, you’re probably an at-will employee. That means you can be fired for any reason or no reason at all. Do you have any rights? Yes, but not many.

Here are some circumstances where it would be illegal to fire you for taking a vacation: 

Family and Medical Leave: If you have scheduled surgery, are pregnant with a due date, or have an immediate family member who has scheduled medical care, you might be protected. If you put in for FMLA leave, your employer must let you use your paid sick and vacation time first before they put you on unpaid leave. If you’re fired because you used your vacation for FMLA leave, you may be protected. 

Contract: If your employment contract says you’re entitled to vacation, then firing you for taking it might be breach of contract. 

Employee Welfare Plan: If the employer has an established vacation policy for all employees, then it might be an “employee welfare benefit plan” that is covered under ERISA. That means it might be illegal to retaliate against you for exercising your right to take your vacation benefit. 

Union contract: If your union’s collective bargaining agreement provides for your vacation benefits, you might be able to grieve any termination that violates your union contract. If you don't have a union at work, look into forming one if you are concerned about your working conditions.

Discrimination: The company can’t discriminate based on race, age, sex, religion, color, national origin, disability, genetic information, or age in granting and denying vacations. Some states have other protected categories such as sexual orientation, marital status, and domestic violence victims. They can favor your boss’s vacation over yours though. If the boss’s vacation conflicts with yours, even if yours was preapproved, they can renege on the approval. 

State law: Some states provide other protections. When in doubt, talk to a lawyer in your state about your rights.

Other than these limited rights, you can absolutely be fired for taking your vacation or to prevent you from getting a paid vacation. Here’s some more information you need to know about your rights while taking vacation: 

Wrongdoing discovered: If your employer discovers wrongdoing or even poor performance while you’re on vacation, even if you have a protected right to take it, they can fire you for the wrongdoing they discover. That means if you embezzled and they find out because someone covered for you while you were out, or if you didn’t do a key assignment before you left, then you might not have a job to come back to. 

Layoff: Even if you have protected vacation rights, if there is a genuine layoff at your company, they can probably include you in the layoff. 

Pay after termination: If your employer has a “use it or lose it” vacation policy (some states prohibit “use it or lose it” vacation policies), you probably have no right to be paid for your vacation when you’re fired. However, if your employer lets people accrue their benefits and get paid out when they leave, you are probably entitled to be paid your vacation time when you leave. It’s an earned benefit. 

Last minute demand to cancel: Sometimes the boss will demand you cancel your plans at the last minute. Maybe an emergency comes up, or she just decides she can’t live without you. If you refuse and take your vacation anyhow, you can be fired for insubordination or job abandonment.

Should it be legal to fire you for taking your earned vacation? No. But it probably is. The United States is the only industrialized nation that doesn’t have a law requiring paid vacationOne in four Americans receives no paid vacation.

So take that trip to Europe or your dream cruise. Enjoy! You may have more free time than you expected when you get back. Maybe it's time we join the rest of the civilized world and require some paid leave for workers. Something to think about when you're voting in November and beyond.

And now, back to my vacation, which I am definitely taking as much of as I can.

Wednesday, July 18, 2018

Can You Rescind Your Resignation? Papa John's Former CEO Wants To Know

In light of the recent brouhaha over Papa John's founder/CEO's use of the n-word, subsequent resignation, then statement that he regretted resigning, I thought I'd address this issue I encounter frequently: can you rescind your resignation?

The answer, sadly, is probably not. However, it mostly depends on how much your employer wants you to stay.

In general, if you quit in a huff, you're gone. Most employers will grab onto anything they can to get rid of someone they think is disgruntled or, in the case of Mr. Schnatter, someone they think has become a liability. So think twice about even mentioning the thought of resignation.

If you quit, then say you changed your mind, your employer does not have to allow you to rescind your resignation. Here are some mistakes I've seen people make that employers jumped on to claim "you quit."

Let's talk severance: You're having problems at work. You've reported them. When HR asks what you want, you say you want severance. Guess what? You just quit. I find that any mention of severance originating from the employee is frequently deliberately misinterpreted as a resignation. Instead, wait for the employer to bring up severance as a possibility before you try to negotiate that exit package.

If this keeps up, I have to leave: Sure, things are terrible. But once you say that if certain practices continue, you'll have to go, your employer may jump on that as a resignation even if you had no intention of going. Nobody likes an ultimatum.

If I don't get a raise, I'll have to look elsewhere: If you're trying to negotiate a raise, better benefits, or just about anything else, don't threaten to start looking for a job. Too many employers will start looking for your replacement.

Walk out: If you leave work in the middle of a contentious discussion with the boss or a coworker, even if you think you were threatened in some way, many employers will claim you abandoned your position. Obviously, if you're in danger you need to get out of there. But if there is any alternative, such as calmly walking into an area with witnesses, do it. Even if you call management and say you're leaving or have left and they say something vague like, "Do what you need to do," many will claim you quit.

Pack your things: This is truly bogus, because there can be any number of reasons why an employee might pack up some or all of their personal belongings, but I've seen a number of employers claim that packing equals quitting. This is usually a desperate defense raised absent some real reason for a firing. Still, be careful. If you really have decided to redecorate or something benign, make sure your office doesn't look like you moved out (or tell someone in management in writing what you're doing and why).

But I never submitted my resignation letter!: I hear this all the time. You said you were quitting, then realized you didn't have a job lined up. You come back to work and find that your exit has been announced. You don't need a resignation letter to make a resignation official, any more than employers need a termination document to make a firing official (well, except in some states where they do need to put it in writing, but not here in Florida and not in most states).

No matter how upset you are, unless you have another job lined up, I recommend against quitting. I especially recommend against quitting without thinking it through. If you quit, you've done your employer a huge favor and maybe cost yourself some unemployment benefits. Proving constructive discharge is incredibly hard.

Think before you quit.

Wednesday, June 27, 2018

Give Thanks And Support To Labor Unions Before It's Too Late

The Supreme Court, hijacked by conservatives when they refused to allow President Obama to appoint a Justice during his term, has predictably put another knife in the back of labor unions. The Republican plan is to eliminate unions altogether. They may succeed. So I wanted to do a rerun of an article I wrote some time ago about why you should give thanks to labor unions and support them by joining, paying dues, and participating.

Anti-union sentiment has spread from state to state, and union busting has become popular under the banner of money savings. Before your billionaire CEO convinces you that labor unions are bad, please don't forget what life was like in the bad old days before unions.

Maybe you don't remember the Triangle Shirtwaist Factory from your American History classes. I'll remind you. The Triangle Shirtwaist Factory was a sweatshop. Women and children, mostly immigrants, worked for terrible wages in terrible conditions. When a fire broke out, they couldn't escape because the employer had locked them in. Wouldn't want employees to take breaks or anything, would you? The employer said it was to stop theft. The fire escapes had collapsed and the elevators stopped working in the 10-story building. One hundred forty six workers died that day in 1911, many as young as 14. It was, until 9/11, the worst tragedy in New York history.

In a speech about the tragedy, explaining what lessons workers needed to learn from it, Rose Schneiderman said:
I would be a traitor to these poor burned bodies if I came here to talk good fellowship. We have tried you good people of the public and we have found you wanting. 
The old Inquisition had its rack and its thumbscrews and its instruments of torture with iron teeth. We know what these things are today; the iron teeth are our necessities, the thumbscrews are the high-powered and swift machinery close to which we must work, and the rack is here in the firetrap structures that will destroy us the minute they catch on fire. 
This is not the first time girls have been burned alive in the city. Every week I must learn of the untimely death of one of my sister workers. Every year thousands of us are maimed. The life of men and women is so cheap and property is so sacred. There are so many of us for one job it matters little if 146 of us are burned to death. 
We have tried you citizens; we are trying you now, and you have a couple of dollars for the sorrowing mothers, brothers and sisters by way of a charity gift. But every time the workers come out in the only way they know to protest against conditions which are unbearable the strong hand of the law is allowed to press down heavily upon us. Public officials have only words of warning to us--warning that we must be intensely peaceable, and they have the workhouse just back of all their warnings. The strong hand of the law beats us back, when we rise, into the conditions that make life unbearable. 
I can't talk fellowship to you who are gathered here. Too much blood has been spilled. I know from my experience it is up to the working people to save themselves. The only way they can save themselves is by a strong working-class movement.

As a result of this terrible tragedy, New York strengthened its labor laws. An investigation showed 200 factories had equally dangerous conditions for workers.

Before the labor movement, it wasn't uncommon for sweatshops to engage in human trafficking. Workers in coal mines, factories, farms and many other workplaces were sometimes forced to work while getting further and further in debt. Many workers were paid in company "scrip" that they could use only at the company store. They could never save for their families and never hope for a better life. Children had to work starting very young, to help support their families, with no opportunity to go to school.

The next time you hear someone knock the labor movement and say unions aren't necessary, please remember that, without unions, our workers would not have these benefits we take for granted:
  • Minimum wage
  • Overtime pay
  • Safety standards/OSHA
  • Paid vacation
  • Sick days
  • Child labor laws
  • Weekends
  • 40-hour work week
  • Health benefits
  • Unemployment compensation
Now that your job (or old job) doesn't look half as bad anymore, make sure you thank union leaders for the rights you take for granted. Think they can't take away those rights? Then you aren't paying attention. Wake up, before it's too late.

I wrote this in 2011. Now they really are starting to take away those rights. What can you do? Join a union. Pay dues. Participate. Change your workplace for the better. Vote better. Vote in the mid-terms in November. Register some friends to vote.

Friday, June 15, 2018

How To Bring Back Unions? Give Unionized Companies A Tax Cut

If there is one thing that will make a huge difference in the fight for worker rights, it's unions. Yet unions are under attack. Employers try to bust unions and prevent unionization. They do everything they can to make sure their workforce is not unionized, and if it is, to discourage workers from joining the union.

So what if we could change that picture just a little? What if employers had an incentive to encourage or at least not prevent unionization? What if employers were motivated to have a unionized workforce?

But how, you ask?

Corporations just got a huge tax cut, and if Democrats manage to take back Congress, the corporate tax cuts will be one of the first things to be rolled back. But I would suggest offering corporations the opportunity to keep their tax cuts if their non-management workforce is 95% unionized.



Right now, the companies that got the tax cuts have pretty much taken their money and run. They have moved jobs overseas, cut jobs, given raises and bonuses to C-level employees, and have done little or nothing to help their workers. Unions have asked employers to show what they did with their tax cut money, but have been met with crickets.

If employers had a tax break for a 95% unionized workforce, then they would have an incentive to stop their anti-union activities. They would also have more of an incentive to keep jobs in the U.S.

Will this result in fair pay, better pro-employee policies, and better benefits for American workers? I think it would help slowly increase the unionization in the U.S., which will be good for workers. Maybe with a tax break, it will be good for employers too.

Maybe a tax break could help stop or slow the war on workers in this country.

Friday, June 8, 2018

Harvey Weinstein's Contract Is An Admission Of His Propensity To Sexually Harass

In the land of what-the-heck-were they thinking, I give you page 10 of Harvey Weinstein's contract, Paragraph i, which is basically an admission that the company's board and management were aware of his propensity to sexually harass. I can't believe they put this in, and I'll be shocked if a judge and/or jury doesn't slap them hard with punitive damages and some personal liability.

necessary to fulfill the Board's fiduciary duties. Failure to provide the Board within a reasonableperiod with such information regarding the business, operations, financial results, prospects andaffairs
of
the Company, including, without limitation, information relating to acquisitions,divestitures and any other potential or actual corporate transaction, that is (a) reasonablyrequested in writing to you by the Board and (b) accessible to you, will be considered a materialbreach
of
this Agreement.
h
Settlements. You acknowledge and agree that (i) the settlement
of
anypending or threatened litigation by the Company that would result in a liability to the Company
of
$1,000,000 or more may only be entered into with the prior written approval
of
a majority
of
the Board, and (ii) you will inform the Board promptly once you become aware that theCompany or any
of
its executives or employees are in discussions to enter into any suchsettlement. You further acknowledge and agree that you will report to the Board (at leastquarterly) the settlement
of
any pending or threatened litigation by the Company that wouldresult in a liability to the Company
ofless
than $1,000,000.
1
Code
of
Conduct. You shall abide by the Company's Code
of
Conduct
as
in effect on the date hereof (andany amended Code
of
Conduct, provided that you approve theamendment), which shall apply to all
of
the Company's employees and directors.
1
In the event that you violate the Company's Code
of
Conduct,other than a violation relating to business expenses, you shall, in addition to any consequencesset forth herein, be subject to the following.(a)
f
the Company is obligated to make a payment to satisfy aclaim that you have treated someone improperly in violation
of
the Company's Code
of
Conduct(an ObligatePayment ), you will be required to reimburse the Company for the entire amount
of
the Obligated Payment and the costs and expenses incurred by the Company in connectionwith such claim. For purposes
of
this provision, an Obligated Payment is either where thepayment is required by a fully litigated award or where the payment is made in settlement
of
theclaim and either the Company and you agree that it was a reasonable settlement, or, in theabsence
of
such agreement, the payment is determined to be a reasonable settlement in expeditedJAMS arbitration.
10
 
CONFIDENTIAL
 WEINCO_BK-001676
(b) You and the Company recognize that, in addition to beingindemnified for the amount
of
payments the Company is obligated to make
as
a result
of
yourmisconduct, such misconduct can cause significant damage to the Company which is difficult orimpossible to measure. Accordingly,
if
your misconduct results in the Company making anObligated Payment to a person damaged by such misconduct, in addition to the indemnificationset forth in subparagraph i.(a) above, you will pay the Company liquidated damages
of
250,000for the first such instance, 500,000, for the second such instance, 750,000 for the third suchinstance, and 1,000,000 foeach such additional instance.
11.
As promptly as possible at the end
of
each calendar year, allexpenses paid by, on behalf of, and/or at your request shall be audited by the Company.
f
theaudit shows that you have personally paid more business expenses than the Company has paidyour personal expenses, the Company shall promptlyreimburseyou for the difference. To theextent the audit shows that the Company has paid more personal expenses than you have paidbusiness expenses, you shall promptly reimburse the Company the difference. You and theCompany recognize that
if
Company funds are used to pay for your personal expenses, theCompany can be damaged in an amount that is difficult or impossible to determine beyondreceiving the reimbursement provided for aboveAccordingly,
if
the audit provided for aboveshows that the Net Personal Expenses then owed by you to the Company for personal expenses
i
.e., the excess
of
personal expenses paid by the Company over business expenses paid by you)is greater than the amount the Company owes you for any reason, including for amounts loaned,advanced, or deposited, then in addition to reimbursing the company for the Net PersonalExpenses paid by the company, you will pay
as
liquidated damages the amount by which suchNet Personal Expenses exceeds the amount the company then owes to you.
12.
Incapacity
a.
In the event you suffer total mental or physical disability and cannotsubstantially perform your duties at any time during the Employment Term, the Board
of
Representatives may at any time after such disability has continued for ninety (90) consecutivedaysrequirethe Company
to
give you written notice that it intends, subject to applicable stateand federal law, to suspend this Agreement. Upon receipt
of
such notice, prior to any suspension