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.