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, December 14, 2018

Ho Freaking Ho: Surviving The Office Holiday Party (Without Getting Fired)

It's time for your office holiday party. Joy to the world. Too many folks come to me after the holidays and tell me their holiday bonus was a firing due to something they did at the party. Here's how to survive without getting fired.

1. DrinkingThe number one way to get fired is to drink too much. Most of the office party firings I see are alcohol-related in some way. First of all, if you are an alcoholic and can't be sure you won't drink if you attend, then don't go. If your boss insists, ask for a reasonable accommodation under the Americans With Disabilities Act to be excused from attendance. If you can and do drink, limit yourself to two drinks tops, then switch to soda. I'm serious here. 

2. Dancing: Some folks get fired or disciplined for "inappropriate" dancing. What's inappropriate? It's in the eye of the beholder, and the boss, customers, vendors and your coworkers are the beholders. When in doubt, sit it out. Any moves that imitate sexual conduct (grinding, gyrating, rubbing) are dangerous if colleagues are present. If you're dancing with a colleague, then be very careful. You don't need a sexual harassment complaint in the new year. If the colleague gets too wild, walk away. If it crosses the line into sexual harassment, report it.

3. Driving: A DUI can get you fired. Plus, you'll have a conviction and will never pass another background check, so you'll have trouble getting a new job. If you don't believe me, check out my article 9 Ways A DUI Can Destroy Your Career. If a colleague or friend tells you to hand over your keys because you've had too much, do it and don't question them. There's always Uber or a taxi. It's way cheaper than defending against a DUI/DWI charge and losing your job.

4. Mistletoe: Kiss your spouse or date under the mistletoe, but not a coworker, customer, vendor or, god forbid, your boss. Seriously. And any company that still has mistletoe up at holiday parties is too stupid to work for. Think about polishing your resume if you see some hanging.

5. Romance: After a few drinks, colleagues start to look pretty attractive. Office romances are dangerous. If you have a one-night-stand or party makeout session with a coworker, vendor, customer (or worse, the boss), expect repercussions at work. Sure, many couples meet at work. My parents did. But tread carefully. No means no. If you break up, stay away and don't retaliate. Persistence does not pay in an office relationship. You can get fired for sexual harassment if you pester a coworker for a date. Don't accept the invitation to the colleague's room. If there's a real romance, take it slow and be sure before you take it between the sheets. If you do pursue an office romance, check the company's policies. You might have to fill out a disclosure form, and you'll likely be separated so you no longer work together.

6. Pressure: Don't pressure anyone to attend an office party. They may have religious objections to attending. Maybe their disability prevents them from coming, or they have a spouse with a disability. You don't want to get charged with religious or disability harassment. And don't start the Merry Christmas/Happy Holidays debate. December is for Hanukkah, Christmas, Kwanzaa, Festivus, Winter Solstice, Hogmanay, and National Ding-A-Ling Day, to name a few. All holidays matter, especially in a workplace subject to religious discrimination laws. Don't end up accused of religious harassment for the holidays.

7. Games: Some offices have party games. You may be tempted to be lewd or bawdy. Sure, many folks will laugh and call you the life of the party. But you may ruin the party for someone you offend, like the boss. Avoid making sexual innuendos, telling off-color jokes, or making other comments that may be deemed inappropriate or offensive.

8. Singing: If the office loves karaoke, have fun. Go ahead and let your inner rock star shine. Just avoid songs with curse words, inappropriate lyrics, or offensive undertones. If you're singing with a colleague, avoid anything overtly sexual. Also avoid any sexual gestures while singing.

If you think I was being a party pooper, it wasn't me. It's your boss and HR that are Grinches. I'm just trying to keep you employed so you can have a happy holiday. 

Monday, December 10, 2018

Companies Fold As Employees Push Back On Forced Arbitration

First Google had a bunch of employees walk out to protest sexual harassment arbitration, and it rescinded its arbitration policy. Now other companies are following as employees push back. Facebook, Microsoft, Uber, Square, Airbnb and eBay have all rescinded or said they will rescind their forced arbitration agreements for sexual harassment claims.

It isn't just tech firms that are getting pressure from employees. When Harvard law students threatened to boycott law firm Kirkland and Ellis because of mandatory arbitration agreements, the firm quickly did a 180.

Now students at other law schools are joining the fight, and have vowed not to work for law firms that require arbitration of employment law claims. The student statement includes these strong statements against employee arbitration agreements:

Mandatory arbitration agreements prevent employees from seeking justice in court and limit the enforcement of substantive employment rights. Mandatory arbitration forces employees to submit any dispute with their employer to binding, private, and often confidential arbitration—a process which advantages sophisticated, repeat players at the expense of individual claimants.
. . .

Finally, we recognize that mandatory arbitration is a policy that negatively impacts all workers, legal and non-legal, and not merely associates and summer associates. We are committed to including questions about employment practices for all employees in future surveys.
I think it's about time employees push back. Still, I have to wonder how many of these law students will end up going into management-side law practice and forcing employees of their clients to arbitrate, despite their clear knowledge that such agreements are about oppressing workers. 

Now that employees have demonstrated that resistance to arbitration agreements is not futile, I hope unions and other employee groups will take up this fight. And I hope (but seriously doubt) that this new generation of lawyers might actually push their clients to drop forced arbitration of employees.

Monday, December 3, 2018

Dear Newly-Elected Officials: Here Are Some Things You Can Do For Workers In Your State

Congratulations to all you newly elected officials! Guess what? Most of your voters are also workers. And it's the workers who have felt left out by politicians lately, so it's time to do something to help workers in your state. Here are a few suggestions of pro-employee legislation you might want to take up in your state to help working people:
  • State-run retirement plans for private sector: Some states have successfully established state-run retirement plans for private sector workers and required certain employers to auto-enroll their employees in these plans and/or allow their employees to opt in. The funds are then paid like any other 401k from payroll. Where Mitch McConnell is talking about rolling back Social Security, this may be the only way to help your state's future retirees.
  •  Right to see your personnel file: While some states require employers to allow employees to review their personnel files, many states like my home state of Florida do not. It’s a basic right. You should be able to see any disciplines and reviews, and any contracts you signed.
  •  Right to get a reason for termination: Some states require employers to give a reason for termination in writing. This would prevent employers from changing stories later to defame or damage a former employee.
  •  Breaks: While most employees think the law mandates certain breaks, especially for hourly employees, some states have little protection for break time. Florida, for instance, only mandates breaks for minors. That includes bathroom breaks.
  •  Real right to work: Many employees think right to work means noncompete agreements are unenforceable. That is untrue. Many states have limited noncompete agreements, Massachusetts being the most recent. Banning noncompetes against hourly employees, making them void if the employee is fired with no cause, making employers pay half or all salary while on a noncompete, barring employers from surprise sign-or-be-fired noncompetes after the employees starts working, are all measures other states have taken to protect employees.
  • Sexual harassment of interns: Neither state nor federal law protects unpaid interns against sexual harassment because they aren’t employees. This is unconscionable, especially in a state like Florida where many high school students need internships to get the community service that is required to graduate.
  •  Verification of employment: Many states, again like my home state of Florida, do not require employers to verify employment for benefits, unemployment, references or otherwise. This keeps people from applying for government benefits and from getting jobs. Employers should be mandated by law to verify employment in writing within 48 hours from request.

So celebrate your win. Then please do something to help working people in your state.

Friday, November 9, 2018

Majority of States Protect Employees of Small Employers, But Not Florida

We've reached a tipping point where a majority of states now have laws that protect employees of smaller employers. Most federal discrimination laws protect employees only if their employers have 15 employees or more (20 for age discrimination, all employers for Equal Pay Act, 4 - 14 for national origin/citizenship under the The Immigration Reform and Control Act of 1986). But a majority of states have stepped in and decided to protect their working people even if they work for a smaller employer.

Not Florida, of course (except our age discriminaiton law also requires only 15 employees). Florida remains, and will continue to remain after the election, one of the most anti-employee states in the nation.

Still, it's something to give us hope when even many very red states have protected more employees. A total of 37 states, plus the District of Columbia, now protect employees of small businesses. Here's a breakdown of states and how many employees a business has to have to be covered under anti-discrimination laws:

  • Alaska - all employers
  • Arkansas - 9
  • California - 5
  • Connecticut - 3
  • Delaware - 4
  • D.C. - all employers
  • Georgia - 10 for equal pay, all for age
  • Hawaii - all employers
  • Idaho - 5
  • Indiana - 6, all for age
  • Iowa - 4
  • Kansas - 4
  • Kentucky - 8
  • Maine - all employers
  • Massachusetts - 6
  • Michigan - all employers
  • Minnesota - all employers
  • Mississippi - all employers
  • Montana - all employers
  • New Hampshire - 6
  • New Jersey - all employers
  • New Mexico - 4
  • New York - 4
  • North Dakota - all employers
  • Ohio - 4
  • Oklahoma - all employers
  • Oregon - all employers
  • Pennsylvania - 4
  • Rhode Island - 4
  • South Dakota - all employers
  • Tennessee - 8, for gender wage discrimination all employers
  • Vermont - all employers
  • Virginia - all employers
  • Washington - 8
  • West Virginia - 12, for gender wage discrimination all employers
  • Wisconsin - all employers
  • Wyoming - 2

Even in anti-employee Florida, some counties and municipalities have stepped up to cover smaller employers. In Miami-Dade, Broward, Hillsborough, Orange, Lee and Pinellas Counties, employers with 5 or more employees are covered by discrimination ordinances.

If 16 states, including even ultra-red Oklahoma, can cover all employees, why won't Florida step up to help its working people? Ask your elected officials.

Friday, October 26, 2018

Pro-Employee States Implement Private Employee Retirement Plans

With Republicans threatening to cut Social Security benefits, retirement savings has become a national issue. Some states (not anti-employee Florida, of course) have tackled this issue by implementing retirement plans for private-sector employees.

The latest state to implement a private-sector retirement plan is Connecticut. They join California, Illinois, Maryland and Oregon in implementing automatic-enrollment IRAs. These are state-facilitated programs that private financial firms administer. Participants are automatically enrolled and pick the percentage of their pay they want to put into the plan from each check. Absent an election, there is a set amount put away.

New Jersey and Washington State have created online marketplaces listing plans administered by private firms that meet minimum standards. 

Massachusetts and Vermont have implemented multiple-employer group 401(k) plans available to eligible employers. In Massachusetts, that means only small nonprofits.

These plans will be lifesavers for the many employees who don't have an employer pension plan. As an example, OregonSaves, the first of these plans, has collected more than $7.6 million in contributions in over 19,000 accounts, a number that increases about $200,000 per week, according to estimates by Oregon’s state treasurer.
Half of private-sector employees have no retirement plan, and many have little or no retirement savings. A third of Americans have less than $5000 saved, 20% have no savings, and a third of baby boomers who are retired or about to retire have zero to $25,000 in retirement savings. We as taxpayers will bear the burden of caring for these retirees, so it makes financial sense for states to step in. 

It's time for states to step in where the federal government is about to fumble badly. Let's make sure working people who retire can live comfortably. 

Friday, October 19, 2018

10 Workplace Rights You Think you Have – But Still Don’t

So I received this email:
Ms. Ballman; 
I happened to come across your article from 2011 regarding 10 Workplace Rights You Think you Have – But Don’t. As both an attorney and a HR/Payroll consultant, your article is either outdated, specific to Florida, or just completely inaccurate. I would urge you to do your research and correct the artcle. If you would be open to discuss the areas of your article that inaccurate, I’d love to provide your details, however, I’m not going to waste my time (or yours) if you don’t care. As it stands, your article provides incorrect information and extreme disservice to employees in general. 
Best Regards,
(name omitted)
First of all, wow, how rude! Is that any way to approach someone you've never met? Yikes! It was so bizarre I thought I was being attacked by a Russian bot or something. Still, I decided to take it seriously. My initial reaction was that a 7-year-old article might well be out of date. So I reviewed it and, sure enough, it's still both accurate and timely. When I asked my emailer for specifics on what they found to be incorrect, their response was, "I’ll just let you look like you don’t know what you are talking  about, since it’s obvious you don’t care." Well, I do care, even though I'm still not sure whether I'm dealing with a Russian bot.

Anyhow, bot or not, I'm posting an updated version.

As an employment lawyer who has represented employees for 32 years, I find that everyone thinks they already know their rights. After years of watching legal dramas and courtroom reality TV, Americans have absorbed lots of legal information. Unfortunately, most of it is wrong. Before you mouth off to your boss about your rights, I thought I'd share with you the top 10 laws most employees think exist- that don't.

1. Wrongful Termination

Most American workers think employers must have a reason to fire you. Surely your employer can’t just be arbitrary and unfair. Surely they can’t just wake up in a bad mood and fire you because they didn’t like your shirt. And there’s the rub. Because, in every state but Montana, your employer can fire you for any reason or no reason at all unless you have a contract saying otherwise. In most states, they don’t even have to give a reason.

But that’s not right, you say. There’s a law against wrongful termination. There must be. Well, there should be, but there isn’t. What we have instead, in 49 states, is at-will employment. At-will employment is that nasty doctrine that says employers can fire at-will, for any reason or for no reason.

Oh, sure, most states recognize some exceptions to the at-will doctrine (my home state of Florida recognizes zero exceptions). Most states find that a termination that is against public policy, such as being fired for refusing to violate a law, reporting a legal violation, doing something in the public interest like jury duty, or exercising a legal right like making a worker’s compensation claim, is unlawful. Another exception a majority of states recognize is an implied contract, which sometimes allows a court to find that a handbook or employer policy is a legal contract. A few states hold that employers owe employees an implied covenant of good faith and fair dealing, but most let employers be as arbitrary as they want to be.

Other protections employees have in the 49 at-will states are: contracts, whether individual or union, saying they can only be fired for cause; discrimination laws; whistleblower laws; the Family and Medical Leave Act; and state and federal employment laws.

But my point is this: if a majority of Americans think employers must have good cause to fire you, why isn’t there a law? Why haven’t legislators who are supposed to represent workers’ interests passed the number one legal protection employees think they have? Legislatures could pass a law like Montana’s Wrongful Discharge From Employment Act of 1987, which lets employees terminated without good cause sue for up to 4 years of lost wages.

We, as taxpayers, are footing the bill for employers who make arbitrary employment decisions. Why not make employers who fire employees without just cause pay for their arbitrariness? Why not at least penalize arbitrary employers through the unemployment compensation system. Why not lift the maximum rate employers can be charged to these arbitrary employers? Why skew the system to punish employees but not employers?

By continuing to allow arbitrary firings without consequences to employers, we end up forcing the unemployed onto food stamps, welfare, and other taxpayer-supported benefits. And small business owners like me end up paying for these arbitrary employers by having higher unemployment compensation tax rates.

2. Right To See Your File

You probably don't have this right, so don't go stomping into HR and making demands. No federal law requires private employers to allow employees to inspect or copy their own personnel files. Only some states require employers to allow you to look at your file and even fewer require your employer to allow you to copy items in your file. Many times, the only way you'll find out what's in your file is if you sue and you get it with a Request for Production, or if you subpoena it in unemployment or other proceedings.

3. Breaks

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 federal law even requires bathroom breaks, but it's probably a health issue, so OSHA might protect you if your employer denies bathroom breaks. If you're a nursing mother, you're entitled to an unpaid break to express breast milk. Some states also offer protection for nursing moms taking breaks. Lots of people get fired for insisting on breaks they're not entitled to. Don't do it.

4. Hostile Environment

A hostile environment is not illegal. Workplace harassment is not illegal. Bullying is not illegal in any state except, oddly enough, Tennessee, and that's only for government employees. If you write a long email to HR or your boss complaining that you are being "harassed," or, you're "in a hostile work environment," you aren't protected against retaliation. While harassment due to race, age, sex, national origin, religion, disability, or another legally-protected category is illegal, just plain "harassment" is not. So reporting it that way doesn't protect you against retaliation. When I ask why people didn't report that they were being treated differently than coworkers of a different race, sex, etc. they usually say something like, "I didn't want to go there." Well, if you'd gone there, firing you for your complaint would have been illegal. But firing you for saying you were harassed or bullied: not illegal.

Appropriate remedies may be to discipline or warn the harasser, to move the harasser, under some circumstances to move the victim, to do training, or in extreme cases, to terminate the harasser. But they don’t have to take any action at all. They only have a duty to maintain a safe workplace. You might still have to work with the harasser. Don't say you refuse to work with the harasser. You might be fired for refusing to work. If you return and are retaliated against or continue to be harassed, report it again.  If the employer allows retaliation or continued harassment, that is the time to get an attorney involved.

5. First Amendment In Private Workplaces

Only government employees have free speech protections, and those are very limited. Otherwise, you can be fired in most states for your speech (including political speech) in the workplace or outside the workplace. You can't be fired for speaking on behalf of coworkers in order to improve work conditions or for objecting to something illegal, but be very careful to make sure you're protected before you speak out.

If you're complaining about working conditions, reporting discrimination, objecting to not being paid overtime, or reporting illegal activity, you are likely legally protected in every state. 

In some states, employee speech about politics is protected. In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people." California, Colorado, New York, North Dakota and Louisiana say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. Here in Broward County, it's illegal to fire employees based upon political affiliation. If you work for government, there's the good old First Amendment to protect you. Plus, the Civil Service Reform Act of 1978 prohibits political affiliation/activity discrimination against federal employees. 

Speech about religion, women’s (or men’s) rights, and unionization is almost always protected.

Otherwise, you don't have free speech rights at work. Be very sure you have legal protection before speaking out.

6. Privacy At Work

Your boss can read your work e-mails and monitor your Internet usage at work. If your employer is going to listen into or record phone calls, there are some legal restrictions. You also have privacy rights in your medical information. There is no federal law protecting your social security number, but California, Texas and New York do offer limited protection against employers displaying your number.

The Electronic Communications Privacy Act of 1986 specifically says your company can't intercept your emails. The problem is, it has exceptions for consent. That means if your company has a policy on email interception or had you sign an agreement, a handbook, or anything else they managed to slip in front of you agreeing that email at work belongs to them, they skate. The law also says it's legal to monitor your email if the company is the email provider or if they monitor your email in the ordinary course of business, such as for customer service.

In other words, there are so many loopholes that your company probably fits into one. Until the courts say otherwise or Congress tightens this law, it likely doesn't help you.

Some states have a tort called "intrusion on seclusion" or "invasion of privacy." There are some protections against highly offensive conduct that's intrusive. The problem is, you probably won't be able to prove you had any expectation of privacy in your emails or other activities at work.

7. Right To Work

I hear all the time, "But this is a right to work state!" Usually while I'm reviewing a non-compete agreement. Right to work doesn't mean your employer can't restrict your ability to work for competitors after you leave. What it means is they can't make you join a union in order to work there. Some states, but not all, are right to work states. If your supervisor tells you that signing a non-compete agreement is meaningless or that it won't be enforced, they are lying to you.

8. Retaliation

There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or the fact that your boss is a jerk. If you do something that puts you in a legally protected category, you may be protected from retaliation. Examples would be objecting to discrimination, making a worker's comp claim, or taking Family and Medical Leave. If you're reporting something illegal the company is doing, you may be a protected whistleblower, but you'd better research the specific whistleblower laws that apply, because there are many hoops to jump through on some whistleblower cases.

If you complained about working conditions on behalf of yourself and coworkers, you may be protected against retaliation under the The National Labor Relations Act (NLRA), which protects employees who engage in concerted activity to improve working conditions.

For more about when retaliation may be illegal, check out my post on that topic.

9. Discrimination Because Your Boss Doesn't Like You

If your boss is discriminating against you for being you, that isn't illegal. Favoritism, nepotism, and being obnoxious are generally not illegal. Discrimination based on age, pregnancy, race, sex, religion, national origin, disability, color and genetic information are illegal. In some states, other categories such as sexual orientation, gender identity, marital status, and being a domestic violence victim are protected.

10. Suing the Boss

As much as it may be satisfying to sue your ex-boss personally, you probably can't. Federal and many state discrimination laws, Family and Medical Leave Act (in some states the courts disagree on this), and most other employment laws simply don't allow it. One major exception is wage and hour violations. Some state discrimination laws do hold supervisors liable for violations. But what's the point? Unless they're rich, you probably won't be able to collect anyhow.
Well that's wrong. What can I do about it?

Since most people think these laws exist, maybe it's probably high time for them to actually be passed. E-mail your congressperson and state representative now and complain if you don't like the fact that you're not protected. Here's how to find out how to contact your representative in Congress:
https://www.commoncause.org/find-your-representative

Here's a website with contact information for elected officials at the state and federal level:
http://www.usa.gov/Contact/Elected.shtml

You do have rights. Among them is the right to vote. If you don't like the law, exercise it and tell your representatives you demand some legal protections. In the meantime, don't get yourself fired by getting your legal advice from television. When in doubt, contact an employment lawyer in your state about your legal rights at work.

Friday, October 12, 2018

No, Your Employer Can't Force You To Quit

People come to me and say, “I was forced to quit.” Huh? How did the employer do that? Gun to head? Torture devices? Kidnapped loved one? Because your employer can’t make you quit. Quitting is entirely, 100%, up to you.

Just because your boss or HR comes to you and says you have to resign, doesn’t mean you should. My usual advice is never, ever submit your resignation, no matter how much they demand it, unless you have another job lined up or the company offers you an incentive to resign that makes it worth your while.

You need to weigh your options carefully before agreeing to resign. Now is the time to negotiate. If they want you gone, let them pay you to go away. Otherwise, make them fire you. You need to consider the upsides and downsides to quitting versus being fired. Here are some things to consider.

Why You Shouldn’t Quit
You haven’t complained about illegal harassment or discrimination that occurred: It may be a bit late in the game, but if you didn’t follow the company’s written policy on reporting harassment based on race, age, sex, religion, national origin, disability, etc. then you may lose potential claims against the employer. Now is the time to put together your formal, written complaint of discrimination and harassment. Submit it to HR as soon after the meeting where they asked you to resign as you can. If you think the resignation request is being pushed by your harasser, say so. Tell them how others of a different race, age, sex, religion, or whatever your protected category is were treated differently. Tell them that those others are not being asked to resign. Ask them to do a prompt investigation. Sometimes, they really don’t know about the discrimination and reporting it might stop the termination process in its tracks.

They aren’t offering anything: If they don’t offer severance or some other monetary incentive, why would you quit? Don’t make it easy on them. If they want you out of there, they should offer something, in writing.

You might lose your right to unemployment benefits: Some unscrupulous employers use the resignation as an excuse to claim you aren’t entitled to unemployment. It could be your word against theirs if you don’t properly document that you were forced to resign.

They want you to sign something right away: If the employer is shoving something in front of you and demanding you sign it, consider that a red flag. They’re trying to trick you. Don’t sign anything you don’t understand or are too distraught to think about clearly. Tell them you need time to think about it. Take it to an employee-side employment lawyer if there’s anything in it you don’t fully understand.

You have claims against the company: If you think you have a discrimination, whistleblower, worker’s compensation retaliation, breach of contract or other claim against the employer, you may have leverage to negotiate a better exit package. Don’t sign a release of claims without fully exploring your options.

You aren’t fooling anyone: Some people think a resignation looks better on a resume. Maybe. But if you resign and are then unemployed for months or years, who do you think you’re fooling? HR people aren’t (mostly) dumb, so they will know something happened that prompted your resignation.

Why You Should Quit

Great severance package: If you are offered a severance package that will tide you over sufficiently when you’re looking for another job, then you might want to take the deal. Make sure you aren’t also signing away your right to work for a competitor, your pension, or something else of value. Take it to a lawyer to be sure.

Won’t challenge unemployment: In most states, the mere promise that you’ll get unemployment without a hassle isn’t much incentive. Unemployment is usually a fraction of what you were making. However, if you think they might have a basis to successfully challenge your unemployment, then you might consider the resignation as long as they make the promise about unemployment in writing.

You have an alternative: If you have a job offer you’ve been considering, have a startup company you want to spend more time on, or think it might be time to retire, then a forced resignation might help you make a smooth transition. Make sure they agree they won’t tell potential employers or customers anything other than that you left to pursue other options.

If your employer is asking you to resign, you have some power. Now is the time to explore your options, talk to a lawyer, call your union rep, and read everything carefully. You may have more leverage to negotiate in this situation than you think.

Friday, October 5, 2018

Massachusetts Limits Noncompetes - Are You Listening Florida?

Florida has a real chance to turn the governorship and some legislative seats blue this year. Because Florida is one of the worst states for employees in the nation, a change in leadership means an opportunity to change some of the worst anti-employee laws. And in my opinion the worst of the anti-employee Florida laws is our noncompete law.

Massachusetts, after years of wrangling, finally passed a noncompete law that protects its workers against oppressive agreements amounting to virtual indentured servitude. The law went into effect October 1.

Here are some of the provisions of the Massachusetts law that could and should be adopted in Florida:

  • No noncompetes for hourly employees
  • No noncompetes for interns
  • No enforcement of noncompetes for employees fired without cause or laid off
  • No noncompetes for minors
  • Continued employment alone is not consideration for a noncompete
  • Noncompetes can't last more than a year, with the exception of an instance where an employee takes trade secrets
  • Employers have to pay at least 50% of wages for the length of the noncompete period

These are very reasonable restrictions on noncompetes that simply don't exist under the anti-employee Florida law. What are some other restrictions that might be reasonable for noncompetes in Florida that don't exist now?


Noncompetes are bad for economic development, bad for wages, and bad for employees. If you think Florida should follow Massachusetts and other states in limiting abusive noncompete agreements, tell your candidates and vote wisely.



Friday, September 28, 2018

Upset At Work? Don't Walk Out Or They'll Claim You Quit

I see scenarios where employees leave work early for entirely sane reasons. For instance:

  • They are threatened by a coworker or customer and feel unsafe
  • They are so upset by a confrontation with management or a coworker that they are crying
  • They are sexually harassed
  • They are called racial, ethnic, or other discriminatory names

Yet in each of these circumstances, I also see employers claim the employee quit or abandoned their position. Why the disparity?

As I see it, the employer was looking for reason to get rid of the employee and the employee gave them the excuse they needed. Otherwise, of course the employer would understand the employee leaving early to regroup, calm down, or get to safety.

In many cases, the employee actually calls or goes to HR or management and explains what happened and why they are leaving. They are told to go ahead and go. Yet they are still accused of abandoning their position or quitting.

What's an employee to do?

Here are some suggestions if you face intolerable conditions at work:

If you feel unsafe, call 911: Even this might not save your job, since many employees get fired for the very act of calling the cops. Still, this is probably better than leaving. However, if you are truly unsafe, such as being physically threatened, get the heck out of there. No job is worth your life.

Put it in writing: Rather than a call or in-person conversation, put your complaint in writing. Don't say you were bullied or "harassed." Say you were sexually harassed or harassed due to race, age, national origin, disability, or other protected category so you are protected against retaliation.

Ask permission: Instead of saying you are leaving, ask, again in writing, if it's okay to leave to calm down or get to safety. If you have permission, it's harder for them to say you quit or abandoned your job. If the permission is verbal, put that in writing. "This will confirm that you called me today at 4:32 p.m. and advised that I have permission to leave early due to my complaint of sexual harassment against John Doe. Thank you for your consideration."

Even these steps might not save your job, so try to stay if you can. But if you have to leave, document the best you can before you go.



Monday, September 17, 2018

You Don't Have To Work In Dangerous Post-Hurricane Conditions

After a storm, I usually get lots of calls and emails about employers making employees work in conditions they deem unsafe. In general, you don't have to work in unsafe conditions, so I'm re-posting this for those affected by Florence. Here's what OSHA says about workplace safety:
You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.
OSHA also has a flyer about safety during disaster cleanup here. Some basic safety rules:
  • Keep an adequate amount of clean water for drinking.
  • Make sure workers are trained to do any complex or hazardous tasks.
  • Provide the proper equipment such as gloves, respirators, boots, lifting equipment and eye protection.
A host of other specific fact sheets are here. Some particularly useful ones for hurricanes are:
Bottom line for employers is: don't be stupid. Don't have employees in business attire climbing ladders and removing debris. Make sure employees are properly dressed. Don't cheap out and try to use your clerical employees to move downed trees or work around downed power lines. The lawsuit you will face when someone is seriously injured or killed will cost you way more than hiring the correct folks for the job.

The worker's page for reporting problems and with more resources is here.

By the way, if your "exempt" employees are doing debris removal or other scut work, they probably aren't exempt from overtime for that work. But that's another issue for another day.

Thursday, September 13, 2018

If My Office Is Closed Due to Hurricane Florence, Do I Get Paid?

It's time, unfortunately, to re-run this popular and necessary column. I hope you make out okay in Hurricane Florence and suffer no damage. However, you may be wondering if you're getting paid.
Whether you’re entitled to be paid when the office is closed depends on whether you are “exempt” salaried or not. Just being salaried doesn’t necessarily mean you aren’t entitled to overtime. It’s possible to be salaried and still non-exempt from the requirements of the Fair Labor Standards Act. Many employers misclassify employees as exempt to avoid paying overtime. If you work more than forty hours per week, it’s better to be non-exempt. But in the case of weather and emergency closings, it’s probably better to be exempt.

Exempt employees: If you’re exempt and you worked any portion of the work week, you have to be paid your entire salary, whether or not the office is closed for a natural disaster such as hurricane, snow, tornado, or flood. Further, Department of Labor regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” This would include natural disasters, so if you are able to work after a storm then you must be paid even if you didn’t work any portion of the week. If you can’t get there on time or have to leave early due to the flooding but the office is open, they can’t deduct for any partial days you worked.

Vacation time and PTO: Your employer can deduct from your vacation time or PTO for the time taken. However, if you have no accrued vacation or PTO time available, they still can’t deduct from your pay if you’re exempt.

Non-exempt employees: If you are non-exempt, then your employer doesn’t have to pay for the time the office is closed. However, if your company takes deductions and you’re a non-exempt salaried employee it may affect the way overtime is calculated.

Who Is Exempt?: You’re not exempt unless you fall into very specific categories, such as executives, administrative employees, or learned professionals. Plus, your job duties must fall within those categories, not just your title. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This is one of those rare times when it's better to be exempt, so it's the one time you can be glad that President Obama's overtime expansion was gutted.

Pay For Reporting To Work: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. North Carolina has no such requirement and neither does Texas, (so maybe it’s a good time to start complaining to your legislators). South Carolina has some protections for state employees but none that I've found for private sector employees.  North Carolina does have a law regarding employer adverse weather policies (they aren't required to have them though):
If an employer does establish an adverse weather condition policy, then pursuant to N.C.G.S. §95-25.13(2), the employer must: "Make available to its employees, in writing or through a posted notice maintained in a place accessible to its employees, employment practices and policies with regard to promised wages." The employer must comply with its own adverse weather policy until such time as the employer changes its policy in writing, notifies its employees of such changes prior to the effective date, and does not take away retroactively any benefits already earned, pursuant to N.C.G.S. §95-25.13(3).

Disaster Unemployment Benefits: If your state is declared a disaster, you may qualify for disaster unemployment assistance. If your state gets hit, here's where to start searchingto see if you can get disaster unemployment assistance.

If you’re hit or have already been hit with a big storm, get in touch with your supervisor or manager as soon as possible to find out whether or not you’re expected to be at work. If you can’t get in touch with anyone, then only go in if it’s safe for you to do so.

Friday, August 31, 2018

New EEOC Miami Policy: No Opportunity For Employees To Respond

In the bad old days, after an employee filed a Charge of Discrimination, employers would file a position statement and then one of two things happened: either the investigator would read a summary of the position statement quickly over the phone, or the investigator would write up a summary of the position statement. Then the employee would have 10 days to respond.

I say the bad old days, because this process really didn't give the employee a full opportunity to understand the employer's response or fully respond.

That all changed when EEOC implemented new Position Statement Procedures on January 1, 2016, entitling employees to a copy of the position statement if they request it. They also gave employees 20 days to respond to the position statement once received. This was way better, because employees had a full opportunity to read and understand what their employer was saying, and then fully respond to and rebut the position statement.

Even at its worst, EEOC gave employees at least some opportunity to respond. At its best, it gave employees a truly full and fair chance to respond.

But not anymore. I have had several cases recently where EEOC got the position statement and then dismissed the charge without giving the employee any chance to respond at all or even tell them they had received it.

When I asked EEOC's General Counsel to look into this, he referred me to the Director, who did not respond to my query at all. When I followed up because it happened again, the Director decided to insult me personally and tell me to take it up with NELA (the National Employment Lawyers Association) and Congress. So I think I will.

I have already directed my concerns about this utter lack of due process for employees to NELA. If you think this new process is terrible and doesn't comply with EEOC's mission to conduct a full investigation of charges of discrimination, contact your member of Congress and tell them you think EEOC should allow employees an opportunity to respond to employer's position statements so that they may conduct a full investigation.

By the way, this isn't the only anti-employee activity EEOC has engaged in since the change in presidential administrations. They have also engaged in dismissing cases immediately upon filing without any investigation (I've seen this happen personally), and I have heard multiple stories of them telling people they don't have a case and refusing to even take their charge (this is particularly awful because filing with EEOC is a prerequisite to filing a lawsuit, and employees have a very short time period to file).

People come to EEOC because they need help, because they think their employer engaged in unlawful discrimination. They also come to EEOC because they are legally required to do so if they even want to think about filing a lawsuit. So why has EEOC suddenly decided that its mission is to only help employers and not employees? Has EEOC been given a new mission to try to discourage or prevent employees from exercising their legal rights?

I think some more investigation is warranted.

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