Holiday Workplace Misconceptions #AllHolidaysMatter

It's the holiday season, and there are lots of misconceptions about the laws relating to holidays in the workplace. Here are a few I'd like to clear up:

Extra pay for working holidays: No federal law requires extra pay for working holidays. Some union contracts and employment contracts require extra pay, such as time and a half or double time for holidays, but most don't. I don't know of any state law requiring extra pay for holiday work. Florida certainly does not.

Holiday pay: If you take the holidays off, maybe you get paid and maybe you don't. Some government employees get paid holidays off by law. Otherwise, it depends on your company policy and any contracts, whether employment contracts or union contracts. Many employers offer certain paid holidays, but they don't have to. If they don't, you may have to use any accrued vacation time or paid time off. If you have none, but still want to take the holiday off, you may have to do it unpaid.

Religious accommodation: If you have a religious reason for needing a holiday off, I suggest putting your request for a religious accommodation in writing to HR or someone in management. If it's a hardship the employer still may not have to grant the accommodation, but most times they are required to accommodate you. On the other hand, time off for your church's holiday pageant or concert is not a religious requirement and probably doesn't have to be accommodated.

Overtime: If you take a holiday or vacation, your overtime pay is only based on hours worked, not the holiday or vacation time.

Discrimination: There are lots of holidays this time of year for lots of religions, so demanding your coworkers or customers greet you specifying a particular holiday could be deemed religious discrimination or religious harassment. Don't try to force your holiday down people's throats. Your employer cannot allow one employee to say "Happy Hanukkah" but prohibit you from saying "Merry Christmas." Your employer can probably prohibit all religious greetings and require a more generic "Happy Holidays" if they enforce it equally. On the other hand, forcing all employees to say "Merry Christmas" may violate some religious prohibitions, such as those of Jehovah's Witnesses. Similarly, if the employer allows religious displays on desks, they must allow all religious displays.

Hopefully these tips will help you get through the holidays without getting fired. Have a wonderful holiday season!

How To Survive The Office Holiday Party Without Getting Fired

It's time for me to remind you that your office holiday party is a minefield. Lots of people get fired for having too much fun or other party-related misbehavior. So I'm reposting the top 8 ways to get yourself fired, and how to avoid them:

1. Drinking: The 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.

Sure, I'm a bit of a party pooper. But if you follow my advice you'll have happier holidays because you'll survive them employed.

OK Millennials, Just Say No To OK Boomer At Work

Sure, the OK Boomer thing is cute and funny. After all, my generation can be a bit out of touch with the modern times. So say it to your parents, your aunt, uncle, grandparents (if they're actually boomers - they're more likely Silent Generation).

But whatever you do, don't say it at work. Seriously.

Boomers are, by definition, over age 40. That means they're protected from age discrimination by the Age Discrimination In Employment Act and state laws like the Florida Civil Rights Act. Saying OK Boomer at work can get you into hot water with HR and EEOC.

If you're saying OK Boomer to a coworker, that could be deemed age-based harassment. If the boomer isn't amused, they'll report you to HR and you'll probably get written up or disciplined. Don't assume that the boomer in question is amused just because they're laughing with you. They may be laughing because they're embarrassed not to show they're being a good sport. It could still be offensive to them and therefore illegal harassment even if they're playing along.

If you're saying OK Boomer to a supervisor, all I can say is OK Millennial. That's going to get you fired. Don't make fun of your boss, and especially don't make fun of them for being old and out of touch.

If you're saying it to a subordinate, you have just given them direct evidence of age discrimination. If you fire, demote, deny a promotion, or even write them up, they can possibly prove that you did it because of age using that comment as evidence. I'd add it to the list of ageist things not to say like asking when they're going to retire (unless you have an actual need to know for reasons other than replacing them), calling them old man or old lady, saying the company needs a younger image, saying they're senile or ancient, and other age-related comments.

Interestingly, it probably doesn't go the other way. If a boomer says OK Millennial, that might not be age discrimination. Millennials haven't turned 40 (yet - they will start turning soon) so most age discrimination laws don't cover discrimination based on being too young. You might get crosswise with a company anti-bullying policy though, so it's probably best to avoid saying it at work.

Bottom line: don't insult colleagues based on their age.

OK Millennials and Boomers. Back to work.

California Bans Forced Arbitration For Discrimination Claims - Will Other States Follow?

Starting in 2020, employers in California are banned from requiring employees to agree to arbitration of state discrimination and labor law issues. That's good news for employees, maybe. And it may have an impact beyond California.

Arbitrations are bad for a number of reasons when done as mandatory processes rather than truly voluntary. Employees have been pushing back on mandatory arbitration, sometimes successfully. So this law will hopefully prevent abusive forced arbitrations in California.

This could affect employees beyond California if they work for a company with offices in California. Many will simply drop forced arbitration across the board.

I say maybe it's good for employees because there's still the Federal Arbitration Act to deal with. Employers will argue that this California law is preempted by the FAA, which allows abusive forced arbitration. I'm guessing we'll see litigation about this soon.

We need action in other states, and we need action on the federal level to ban abusive forced arbitrations. Arbitration can be a wonderful thing if truly voluntary and truly fair. We need to make sure that all employees get to make a real choice rather than being forced into an unfair process.

C'mon Florida. Let's do something to help employees for a change.

Florida Workers Get A Whopping Ten Cents, But There's Hope

Yipee! Florida's minimum wage is going up a whopping 10 cents, from $8.46/hour to $8.56/hour. Tipped workers will get $5.54/hour.

If that news generates a big yawn, or a "how the heck can anyone live on that?" there's hope. 

A new petition to very gradually raise Florida's minimum wage to $15/hour just got enough signatures to make the ballot in November. It would raise the minimum wage to $10 in September 2021, and then go up $1 annually after that. So it wouldn't be until 2026 that it finally gets to $15. 

Hey, at least it's something. Other states have already raised minimum wage to $15: California will have it by 2022, New York by 2020.  Washington's will be $13.50 in 2020. Arizona and Colorado have raised theirs to $12 effective in 2020. Oregon's is currently $11.25 and will be $13.50 by 2022.

Surely Florida can do at least as well as these states for its workers. To me, the ballot measure is a no-brainer. The current minimum wage means people working those jobs live below the poverty line. If you're thinking folks should just get a better job, that doesn't solve the problem, does it? It just means that some other worker will live in poverty instead. Do you really believe that some full time jobs need to be done but the people who do them should live in poverty? I didn't think so.

Make sure you vote in November to raise the minimum wage in Florida.

If you think minimum wage is too low and want to help, then check out the Fight for 15. They are teaching workers to organize to fight for better wages. 

Finally, One City Goes After Thieving Employers

I've done a few posts about the criminalization of employment law, and in those posts I've asked why it's all one-sided. Employees are going to jail for alleged trade secret theft, accessing employer computers once they're fired, and a host of other offenses. Yet employers who steal from employees and who commit other crimes against employees largely escape.

Well, one city has had enough. Philadelphia now has a unit in the DA's office just for prosecuting crimes against employees. The big focus is wage theft, but I'm betting they will get all kinds of crimes they can prosecute, like assault and battery, theft of personal items, antitrust violations if they have a state antitrust law, and other criminal violations.

It's about time. When will other cities and states prosecute employers for breaking the laws with respect to employees? Stay tuned.

Is EEOC Turning Down New Charges of Discrimination?

I've heard from multiple different clients and potential clients that they've contacted Miami EEOC and were either turned away or were unable to get an appointment. Some were told on the phone that EEOC is not taking new cases. Others filled out the form online and the next step is to set an appointment. But when they click on the next step they are unable to get an appointment.

WTH?

Filing a charge of discrimination is required before filing a charge of discrimination. In Florida, it must be filed within 300 days from the date of discrimination. In other states it's either 180 or 300 days. If EEOC is refusing to allow folks to file charges, that means workers who were subjected to discrimination may not be allowed to file a discrimination lawsuit.

Sure, the Supreme Court recently ruled that filing a charge with EEOC is not jurisdictional, meaning that the lack of a charge doesn't automatically mean the courts can't hear the case. But the Supremes also said, "EEOC charge-filing is still a mandatory prerequisite to filing suit and remains a procedural step that a court must enforce if the issue is timely raised . . . ."

I'm sure hoping that the folks telling me that EEOC is refusing to allow them to file charges of discrimination have somehow misunderstood, but I've heard it enough in the past couple weeks to think a pattern is developing.

If filing a charge of discrimination is still a "mandatory prerequisite to filing suit," then EEOC needs to take all charges that workers want to file. Otherwise, it is preventing people from pursuing their legal remedies for race, age, sex, national origin, pregnancy, disability, color, religious, and other discrimination cases.

I hope this is not a new anti-employee policy implemented by this administration to prevent workers from exercising their rights. Say it ain't so EEOC!

Make Less Than $35,568? Starting January 1, You Get Overtime

The Department of Labor has just raised the minimum amount employees must make to be considered exempt for overtime, from $23,660 to $35,568, starting January 1. You still have to also meet one of the exemptions, such as administrative, professional, executive, computer professional, or outside sales, and still have to be paid on a salary basis rather than hourly.

This new rule will add about 1.3 million workers to the employees entitled to be paid overtime if they work more than 40 hours/week. So yay!

Here's DOL's summary of the rule's effects:

• raising the “standard salary level” from the currently enforced level of $455 per week to $684 per week (equivalent to $35,568 per year for a full-year worker);
• raising the total annual compensation requirement for “highly compensated employees” from the currently enforced level of $100,000 per year to $107,432 per year;
• allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) paid at least annually to satisfy up to 10% of the standard salary level, in recognition of evolving pay practices; and
• revising the special salary levels for workers in U.S. territories and the motion picture industry.

While this is good news, I'd note that President Obama was going to raise the amount to $47,000, but this administration stopped that from happening. So if you make between $35,568 and $47,000, you should reflect your displeasure when you vote next year.

This new rule won't be automatically increased for inflation, so it may be decades before we seen another increase. Enjoy it while you can.

More States Fight Back On Low Wage and Surprise Noncompetes

Once legislators woke up to the fact that employers were running amok with noncompete agreements, imposing them on sandwich makers and other low-level employees, some states took action. Here are some new state laws that limit noncompete agreements:

• Maine: The Act to Promote Keeping Workers in Maine, which went into effect this week, bans no-poach or non-solicitation agreements with other employers; prohibits noncompetes for employees earning at or below 400% of the federal poverty level, mandates pre-employment disclosure of non-compete agreements; says non-competes can't take effect until after one year after the employee is hired or 6 months after the employee signs the agreement, whichever is later; and imposes $5000+ fines for violations.
• New Hampshire: New Hampshire already required employers to provide a copy of a required non-compete agreement to potential employees before the employee accepted any offer of employment. Starting September 8, NH employers can't force low-wage employees, meaning “an employee who earns an hourly rate less than or equal to 200 percent of the federal minimum wage,” to sign noncompetes.
• Rhode Island: The Rhode Island Noncompetition Agreement Act, signed in July, and going into effect next year, will bar employers from entering into or enforcing noncompetes with hourly employees, undergraduate or graduate student interns, employees 18 or younger, and low wage employees (those employees whose annual earnings are not more than 250% of the federal poverty level).

Michigan has a bill working its way through the legislature limiting noncompetes. So do Vermont and Pennsylvania.

If you think sandwich makers and other low wage employees shouldn't be prohibited from moving on to better paying jobs, and that employers shouldn't be able to surprise new employees with noncompetes after they start, tell your state legislators to get with it and join the pro-employee movement banning low wage and surprise noncompetes.

 

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 so I thought I'd repost this for those affected by Dorian. In general, you don't have to work in unsafe conditions. 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:

• Hand hygiene and gloves in flooded areas.
• Chart of hazards and protective measures to take.
• Working outdoors in warm climates.
• Protecting workers from the effects of heat.
• Debris removal guidelines.

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.

If My Office Is Closed Due To Hurricane Dorian, Do I Get Paid?

It's that most awful time of the year, that is, time to re-run this popular and necessary column. I hope you make out okay in Hurricane Dorian 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. Florida has no such requirement (so maybe it’s a good time to start complaining to your legislators). If it veers nortn, 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 searching to see if you can get disaster unemployment assistance.

If you’re 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.

Clearing Up 10 Common Misconceptions About Employment Law

I'd like to quickly clear up some common misconceptions about employment law:

1. Breaks: There is no federal (or Florida) law requiring breaks for adult employees.
2. Reason for firing: No, your employer doesn't have to give you a reason for firing you in Florida or most states. Some states do require that employers give a reason in writing, but it's not the majority. The good news is the failure to give a reason could prevent them from getting a summary judgment based on having a legitimate reason to fire you.
   
3. Right to work: Right to work does not mean that noncompete agreements can't be enforced. It has absolutely nothing to do with noncompetes. It has to do with whether you have to pay union dues to work in a union workplace. It is a measure meant to weaken/destroy labor unions.
4. Harassment: Bullying, harassment and hostile environment are not illegal in any state but Tennessee, and that's only for government employees. Hostile environment or harassment is illegal if it is because of race, sex, age, national origin, disability or other protected class.
5. Retaliation: If you complain about bullying or hostile environment that isn't due to a protected class, you aren't legally protected against retaliation.
6. Noncompete agreements: Noncompetes are frequently enforced in Florida. It's one of the most anti-employee states in the nation. Stop telling people noncompetes are never enforced here. Seriously.
7. Firing: Yes, your employer can fire you over the phone or by text. There is no law saying it has to be done in person or with an HR person present. There is no particular way an employer has to fire you unless you have a contract saying otherwise.
8. Unfair treatment: Yes, your employer can be arbitrary. They don't have to treat everyone the same. They can be jerks. What they can't do is treat people differently due to age, race, sex, national origin, disability or other protected class.
9. Doctor's note: Yes, you can be fired for missing work even if you have a doctor's note. Unless you are covered by FMLA (worked at least a year, employer has at least 50 employees, absence for serious medical condition) or the absence relates to a disability, you can be fired for missing work when you're sick.
10. FMLA and vacation/sick time: Don't wait until you use up your sick or vacation time to put in for FMLA. They go hand in hand. If you have accrued paid time off, then your FMLA is paid. Otherwise, it is unpaid. 

These are not by any means all the misconceptions I encounter about my area of practice, but they are some recent ones. Bottom line is don't listen to your non-lawyer friends when they opine about your legal rights. And frankly some non-employment lawyers get some of this stuff wrong (like the enforceabilty of noncompetes and right to work). When in doubt, talk to an employment lawyer in your state about your rights.

How Transgender Discrimination Cases Affect Straight Employees

There's a case in front of the Supreme Court right now that will answer whether employers may discriminate against transgender workers. The orange one's administration says employers should be able to discriminate against trans people. If you think that case won't affect you because you're straight or not transgender, think again.

When I was starting out in law practice, a judge decided that women were prohibited from appearing in his court in pants. There was an outcry, of course, and the judge had to reverse course. I didn't wear anything but pants in court for years after that, and still mostly wear pants. The Department of Justice has supported the funeral home owner in the transgender discrimination case, and that owner has specifically stated that he would fire any woman who refused to wear a skirt to work. The DOJ thinks that's just fine and dandy.

Transgender discrimination is part of sex discrimination, and that's why some courts have said its illegal. The theory is that trans people don't meet gender stereotypes of what a man or woman should look like, dress like and behave like, and that if they were another gender they wouldn't have any issues.

These cases impact more than just trans employees because they affect any worker that doesn't fit in with sexual stereotypes. A woman that wants to wear pants, a man that doesn't like football, a woman that drinks beer and watches sports with the guys, a man that enjoys sewing, a woman who drives a muscle car, a man who wears pink clothes, the list can go on and on of behaviors and appearances that might not meet a boss's expectations of what a man or woman should be.

If you look back at other discrimination cases, you can see that they had a positive impact on others outside their protected class. Sex discrimination cases involving height and weight requirements for police and fire allowed smaller men to choose those professions as well as women. Disability discrimination cases involving wheelchair access also allows parents with strollers easier access to buildings. By eliminating arbitrary restrictions on employment and accessibility, we make things better for many people.

So if you aren't typical of your gender, if you don't fall into 100% of what people traditionally think your gender should be (and isn't that most of us in some way?), or if you just want to wear pants or pink to work, then you should be rooting for the trans workers who are fighting for legal protections against discrimination. Let's not go back to the bad old days of strict gender roles in society.

Can You Be Fired If Your Boss Finds Out You're Leaving, Or If You Give Notice?

So you told your boss you might be quitting. Or you gave notice that you're leaving in three months. Can your boss fire you or shorten your notice period? The answer is probably yes.

I assume you don't have a contract saying you can only be fired for cause. Assuming you don't, you're an at-will employee who can be fired for any reason or no reason at all. They can't fire you for an illegal reason, like discrimination, but can fire you for any other reason.

If your boss knows you won't be around much longer, then she can protect herself by looking for a replacement. Once your boss finds out you're leaving or even thinking about leaving, you're probably on your way out. From your boss's perspective, it isn't really fair to your boss to leave her in limbo about your plans. That means she is within her rights to hire someone to replace you and send you on your way.

I suggest you keep your plans to yourself until you are 100% sure. If you dither with the dates, yet telling her you'll be gone eventually, you have alerted her that she'd soon have a vacancy. The better plan is to wait until you've booked the moving vans and sold the house, then give a few weeks of notice.

However, even if you give notice, your boss doesn't have to honor it. You can be fired for giving notice, which is pretty stupid on the boss's part if you ask me. Who would ever give notice if they do this to employees?

To sum it up:

• Your boss doesn't have to wait until you give notice. Once they know you're leaving, replacing you is fair game.
• Your boss doesn't have to let you take back your notice. If you said you were leaving two months ago, then changed your mind, you are probably gone.
• You don't have to call it "notice" or anything specific for it to be official. If you say you're leaving soon, you just quit.
• Your boss can shorten your notice. If you say you're leaving in October, they can say goodbye to you in August. They don't have to let you work out your notice period. You're terminable at-will unless you have a contract saying otherwise. 

My one caveat is if you know of other employees of a different race, age, sex, national origin, or other protected category who were treated differently, then you might have a discrimination case. However, your damages would be limited to your notice period, so that may not be worthwhile pursuing.

Be careful what personal information you share at work. If your employer finds out you're planning on leaving, you may be out the door sooner than you think.

Some Florida Physician Noncompetes Are Invalid

For the first time in many years, the Florida legislature actually did something pro-employee. Well, at least, pro-doctor. Here's the new law:

542.336 Invalid restrictive covenants.—A restrictive covenant entered into with a physician who is licensed under chapter 458 or chapter 459 and who practices a medical specialty in a county wherein one entity employs or contracts with, either directly or through related or affiliated entities, all physicians who practice such specialty in that county is not supported by a legitimate business interest. The Legislature finds that such covenants restrict patient access to physicians, increase costs, and are void and unenforceable under current law. Such restrictive covenants shall remain void and unenforceable for 3 years after the date on which a second entity that employs or contracts with, either directly or through related or affiliated entities, one or more physicians who practice such specialty begins offering such specialty services in that county.

For doctors whose employer has a monopoly on an entire specialty practice area in a county, they will see some relief from noncompetes with this new law. It probably only helps those in rural counties, but it's a baby step in the right direction.

Of course there's a lawsuit. 21st Century Oncology has filed a lawsuit to stop the law. They lost their bid for an emergency injunction, but the suit is still pending.

I'll keep you posted if anything changes, but for the moment this is the law in Florida.

Recording Meeting In Office Protected by National Labor Relations Act

For those of us in all-party consent states like Florida, it's always an issue whether employees may record conversations with supervisors surreptitiously. Now employees have another weapon in their arsenal to support the legality of office recordings: the National Labor Relations Act (the Act).

In a recent decision, a National Labor Relations Board Administrative Judge held that a recording of a meeting where unionization was being discussed was both legal and protected by the Act, even though company policy prohibited such recordings:

Section 7 of the Act reads as follows: 

Employees shall have the right, to self-organization, to form, join, or assist labor 35 organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a 40 condition of employment as authorized in section 8(a) (3). 

29 U.S.C. § 157. Thus, employees have a statutory right to engaging in union and protected concerted activities, or to refrain from any and all such activities. Cf. Stanton Industries, Inc., 313 NLRB 838, 848 (1994) (noting the Board has “pointed out over and employees have the 45 right to engage in union activities, as well as the right to refrain from engaging in union activities, which rights are guaranteed by Section 7 of the National Labor Relations Act.) JD(SF)–21–19 14 

Regarding Mansour, I find that his actions were protected by Section 7 of the Act. In the January 9 captive-audience meeting Respondent was presenting its position to employees and attempting to persuade them to vote the Union out. Mansour had never previously been in a 5 union, he is dyslexic, and English is his second language. He decided to record the meeting to listen to it more carefully later and get a better understanding of what being discussed. Mansour was simply documenting the meeting in order to study Respondent’s position, so he could make an educated choice when voting to either retain or decertify the Union. Respondent argues his actions are not protected because he did not discuss his intentions to record the meeting with 10 anyone else. However, I find Respondent’s argument misguided.

The judge also found that the recordings were legal under Washington law because the subject matter, unionization, was not private and the employer could not restrict employees from discussing what happened in the meeting. Further, the judge determined there was no expectation of privacy in the meeting.

So, while this decision only applies where the meeting is about unionization or working conditions on behalf of coworkers as well as yourself, and only if you aren't in management, and only if you work for an employer covered by the Act (which is most non-government employers), it may keep you from being fired (or prosecuted) if you get caught recording a workplace meeting.

What Unions Can Do To Help Immigrant Members

The National Immigration Law Center has this helpful information for unions that want to help their members in this time of ICE raids:

If you belong to a labor union, there are ways it can help you. You should talk to your union representative about your concerns. If it would make you feel more comfortable, ask some of your co-workers to go with you to talk to your representative. Your union contract might have language that protects union members, such as an agreement with the employer that has one or more of the following provisions:

• The employer will not allow any Immigration officers to enter the workplace without a valid warrant signed by a federal judge or magistrate
• The employer will immediately notify the union if the Immigration authorities contact the employer for any purpose so that the union can take steps to inform its members about their legal rights or to help them obtain legal assistance.
• The employer will allow lawyers or community advocates brought by the union to interview employees in as private a setting as possible in the workplace. The union might also have a legal plan, which provides workers with immigration attorneys.
• The employer agrees not to reveal the names, addresses, or immigration status of any employees to Immigration, unless required by law.
• The employer will not participate in any computer verification of employees’ immigration or work authorization status.

I hope labor unions that don't have these provisions in place will look at ways they can negotiate to help their immigrant members.

What To Do If ICE Shows Up At Your Workplace (For Employees)

Since it looks like the ICE raids have started, I thought I'd publish this helpful information put out by Penn State Law's Center for Immigrants’ Rights Clinic:

All people living in the United States, including undocumented immigrants, have certain U.S. Constitutional rights.  

If immigration officers (ICE) come to your work place, they must have a valid search warrant or the consent of your employer to enter non-public areas. If you are undocumented and immigration officers come to your work place, be aware of the following: 

• Do not panic and do not run away. If you are frightened and feel like you need to leave, you can calmly walk toward the exit. 

• If you are stopped, you may ask if you are free to leave. If the officer says no, do not try to exit the building. 

• If you are questioned, you may tell them you want to remain silent. 

• You have the right to remain silent. You do not need to speak to the immigration authorities or answer any questions. 

• If you are asked where you were born, or how you entered the United States, you may refuse to answer or remain silent. 

• If you choose to remain silent, say so out loud. 

• If they ask you to stand in a group according to immigration status, you do not have to move, or you can move to an area that is not designated for a particular group. 

• You may show a know-your-rights card to an officer that explains that you will remain silent and wish to speak to a lawyer. 

• You may refuse to show identity documents that say what country you are from. 

• Do not show any false documents and do not lie. 

• You have the right to speak to a lawyer. If you are detained or taken into custody, you have the right to immediately contact a lawyer. 

• Even if you do not have a lawyer, you may tell the immigration officers that you want to speak to one. 

• If you have a lawyer, you have the right to talk to them. If you have a signed Form G-28, which shows you have a lawyer, give it to an officer. 

• If you do not have a lawyer, ask an immigration officer for a list of pro bono lawyers. 

• You also have the right to contact your consulate. The consulate may be able to assist you in locating a lawyer. 

• You can refuse to sign any/all paperwork until you have had the opportunity to speak to a lawyer. 

• If you choose to sign something without speaking to a lawyer, be sure you understand exactly what the document says and means before you sign it.

Even if you aren't an immigrant, you can help coworkers by having this information handy in case of an ICE raid.

Enjoy Your Summer Internship - You May Never Work In Your Field Again

In a new low for management side, the Wall Street Journal exposed the ugly practice of intern noncompetes. That's right. Intern. Noncompetes.

Let me get this straight. A college or high school student goes to work for little or no pay, and they are handed a bunch of papers to sign. They're so thrilled at the opportunity to work for this company, they don't read. They just sign. They never get a copy of what they signed.

Surprise! After they graduate, they get their dream job in the industry, and along comes the nastygram. "Dear John, You aren't allowed to work at your dream job because you signed a noncompete. You can't work in your field for two more years. By then, all the entry level jobs will be taken. Enjoy your work at McDonald's flipping burgers." And the letter to John's employer: "Dear New Employer: You hired John. He signed this noncompete. If you don't fire John, we'll sue you, your mother, your dog, and everyone you ever met."

So John is fired, and he's fighting a big corporation from the position of being unemployed. The new employer now has a bad taste in its mouth for John, so he's lost that opportunity. He's out of his field and unable to fight. Lesson: read everything before you sign, and keep copies. If you can't live with it, don't sign.

Yes, there are defenses to noncompetes. But to fight them, you have to be able to afford an attorney and court costs. Most people, especially recent college grads, can't afford that.

My state's Senator, Marco Rubio (with whom I almost never agree, except now) has proposed a bill that would prohibit noncompetes for hourly employees. That would be a great start.  Democrats have repeatedly tried and failed to limit noncompetes over the years, so maybe a Republican can get his colleagues to listen.

Some states, like Massachusetts, have also banned noncompetes for hourly and low wage employees. Illinois banned noncompetes for low wage workers. California, Oklahoma and North Dakota ban most noncompetes. There are lots of bills pending that would address problems with noncompetes in various states.

I think luring interns in with the promise of job opportunity and college credit, then making them sign away their right to work in their field, is unconscionable. If you agree, support any elected official's efforts to limit or ban noncompetes.  And vote with your money: don't do business with companies that have obnoxious noncompetes for interns and low wage employees.

Dear Employers: You Can Go To Jail For Firing Employees Due To A Garnishment

Every once in awhile a worker comes to me after having been fired right after a court issues a garnishment order against them for child support (or another debt). This is a violation of both federal and many state’s laws. It is absolutely illegal in Florida. Here are some laws that protect employees from firing due to garnishment:

Consumer Credit Protection Act: This law limits the amounts that can be garnished and sets out the procedures for garnishing wages for any debt. Many employers think this is a pain, so they forget that the law also prohibits employers for firing an employee if they’re garnished for a single debt. If you get a second garnishment, Federal law doesn’t protect you, but state law might. Florida law definitely does.

Penalties Under Federal Law: If your employer fires you after one garnishment, you can get a court order requiring them to reinstate your job, plus back pay. The Department of Labor can sue for you. Employers who willfully violate the law against retaliation can be prosecuted criminally and fined up to $1,000, or imprisoned for not more than one year, or both.

Florida Law: Fla. Stat. Sec. 61.12 provides, regarding child support garnishment: "Any disciplinary action against the employee by an employer to whom a writ is issued pursuant to this section solely because such writ is in effect constitutes a contempt of court, and the court may enter such order as it deems just and proper." Under Fla. Stat. Sec. 61.1301, "A person may not discharge, refuse to employ, or take disciplinary action against an employee because of the enforcement of an income deduction order. An employer who violates this subsection is subject to a civil penalty not to exceed $250 for the first violation or $500 for any subsequent violation. Penalties shall be paid to the obligee or the IV-D agency, whichever is enforcing the income deduction, if any alimony or child support is owing. If no alimony or child support is owing, the penalty shall be paid to the obligor. An employee may bring a civil action in the courts of this state against an employer who refuses to employ, discharges, or otherwise disciplines an employee because of an income deduction order. The employee is entitled to reinstatement and all wages and benefits lost plus reasonable attorney’s fees and costs incurred.

Other State Laws: If the states provide for a lesser amount to be garnished, or provide protection for garnishment of more than one debt, the state laws apply. That means employers need to be aware of the protections their state applies to employees. Some states provide protections against discharge for a child support garnishment, regardless of whether or not there were prior garnishments for other debts. Here’s a list of some state laws on garnishment.

Yes, dealing with an employee’s wage garnishment is a pain. But if you fire them just because you don’t like being inconvenienced, you can end up going to jail over it (and still have them back as an employee). 

If you were fired right after a garnishment, contact an employee-side lawyer in your state to find out about your rights.

Is the Florida Noncompete Statute Unconstitutional? Probably

In light of the infamous Supreme Court decision of Burwell v. Hobby Lobby Stores, Inc., most corporations are "persons" under the U.S. Constitution. Regarding the noncompete statute, corporations should thus be treated as a “person” for purposes of constitutional analysis. 

If corporate people have equal rights with those of individuals for purposes of free speech and religious liberty, so do human people have equal rights with corporate persons for purposes of equal protection under the law.

Thus, the Florida noncompete statute, Fla. Stat. § 542.335, likely violates the Equal Protection Clause of the U.S. Constitution and the Florida Constitution (Article I Sec. 2) in that it prohibits the court from considering undue hardship on employees, but allows consideration of hardship on employers.

In most noncompete lawsuits, employees have been classified from their former employers separately based on a difference, that is, former employee and former employer, which has no reasonable relationship to the ban on considering undue hardship for one side only. If the Florida legislature wants to protect trade secrets, it has already done so through a separate statute. This entire statute treats employees and employers arbitrarily and differently with no rational basis.

If the employees in noncompete litigation were corporations instead of individuals and entered into an agreement limiting their ability to compete or poach customers, there is no doubt they would be prosecuted for antitrust violations.

This statute creates an imbalance by considering only hardship on the employer with no ability to use equity to balance the hardships to the individual human employees.

Furthermore, the provision of the statute prohibiting the courts from balancing the equities likely violates the Florida Constitutional provision governing access to the courts, Article I Sec. 21. That provision protects rights that existed at common law. In Florida, the common law was that noncompete agreements were not allowed. By imposing the arbitrary one-sided balancing and limiting the Court’s ability to balance hardships, the legislature has limited Defendants’ access to the courts.

The statute also likely violates the separation of powers clauses of the Florida Constitution, Article II Section 3 and Article V Section 1 by interfering with the Court’s powers in equity. By prohibiting the Court from considering all factors in equity, including undue hardship, the legislature has interfered with the Court’s powers.

In short, there are several constitutional problems with Florida's unbalanced and biased noncompete statute. Hopefully, the courts will recognize this imbalance and address the constitutional defects in the statute one of these days.

Can I Be Fired For Taking Vacation? Short Answer: Yes

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?

You’ve earned two weeks of vacation, and wow, did you work for it. You put in for your two weeks, got it approved, and planned your trip. You have non-refundable tickets to fly to your dream all-inclusive resort. A week before you leave, you mention that Bob 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 five people who went on vacation were fired.

Should you be worried? The short answer is: yes. There is no U.S. law requiring an employer give you any paid or unpaid 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. Yet a recent survey found that one out of four of Americans are taking no vacation this summer.

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.

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, such as under a union or employment contract, if there is a genuine layoff at your company, they can probably include you in the layoff.

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.

Use it or lose it: If your employer has a “use it or lose it” vacation policy, 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. Some states protect their citizens by barring use-it-or-lose-it vacation policies. Here are some states that look out for their voters:

• California: Under Cal. Labor Code §227.3, all accrued vacation must be paid when employment ends. California also prohibits policies that make employees take vacation by a certain date or lose it. In one California case, an illegal policy cost the employer millions.
• Illinois: Under 820 ILCS 115/5; 56 Ill. Adm. Code 300.520, employers have to pay out accrued vacation pay at the end of employment unless a collective bargaining agreement with a union provides otherwise. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. 56 Ill. Adm. Code 300.520(e).
• Indiana: While employers can have a use-it-or-lose-it policy in Indiana, employers have to pay out accrued vacation if their vacation policy is silent on the issue. See Indiana Heart Associates, P.C. v. Bahamonde, 714 N.E.2d 309 (Ind. App. 1999); Die &Mold, Inc. v. Western, 448 N.E.2d 44 (Ind. App. 1983).
• Louisiana: Vacation pay is earned wages, so policies requiring the forfeiture of earned vacation pay are not enforceable. Beard v. Summit Institute, 707 So.2d 1233 (La. 1998). However, they may implement use-it-or-lose-it policies saying employees must use by a certain date or lose the vacation.
• Maryland: Like Indiana and Louisiana, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.
• Massachusetts: Employers have to pay out accrued vacation pay at the end of employment. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. MA Atty. Gen. Advisory 99/1.
• Michigan: Similar to Indiana, Louisiana and Maryland, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.
• Montana: In Montana, an employer can't take away earned vacation pay or fail to pay it out for any reason. MT Dept. of Labor and Industry FAQ; See Langager v. Crazy Creek Products, Inc., 287 Mont. 445; 954 P.2d 1169 (Mt. Sup. Ct. 1998).
• Nebraska: Nebraska law prohibits employers from failing to pay out earned vacation or from policies saying employees must use vacation by a certain date or lose it. See Neb. Rev. Stat. § 48-1229(4); Roseland v. Strategic Staff Management, Inc., 272 Neb. 434, 722 N.W.2d 499 (Neb. Sup. Ct. 2006); Neb. Dept. of Labor FAQ.
• New York: If the policy is silent on the issue vacation must be paid out at the end of employment.
• North Carolina: If the policy is silent on the issue, vacation must be paid out at the end of employment. N.C. Gen. Stat. § 95-25.12.
• North Dakota: Employers can't require an employee to forfeit accrued or earned vacation leave upon separation from employment, regardless of the reason. ND Admin. Code § 46-02-07-02(12). However, they can implement policies saying vacation must be used by a certain date or be lost.
• Ohio: While use-it-or-lose-it policies are allowed, vacation must be paid out at the end of employment if the policy is silent on the matter. See Fridrich v. Seuffert Construction Co., 2006 Ohio 1076 (OH App. 2006).
• Oregon: Oregon is another state that allows such policies but requires employers to pay out vacation if the policy is silent on the issue.
• Rhode Island: Employers must pay employees who have completed at least one year of service for any vacation pay accrued in accordance with company policy or contract on the next regular payday for the employee when they leave. RI Stat. § 28-14-4(b).
• West Virginia: If the policy is silent on the matter, vacation has to be paid out at the end of employment. See Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (WV Sup. Ct. 1999). Otherwise, employers are allowed to implement such policies.
• Wyoming: In Wyoming, an employer cannot require an employee to forfeit accrued or earned vacation on leaving. WY Dept. of Employment FAQs.

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 vacation. One in four Americans receives no paid vacation.

So take that trip to South America 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 2020.

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

Can My Employer Make Me Speak English Only, Even On Breaks?

I'm always surprised how many employers try to impose English-only policies or ban speaking a particular language when there are so few circumstances where such a policy would be legal. Most English-only policies at work violate the laws against national origin discrimination. Yet some companies like Albertsons and Forever 21 have ended up in hot water for banning the use of any language other than English. In the case of Albertsons, EEOC sued them for limiting language to English even during breaks. 

Banning the use of another language on breaks is almost certainly a blatant violation of the law.

Here's what the United States Equal Employment Opportunity Commission (EEOC) says about English-only policies:

The EEOC has stated that rules requiring employees to speak only English in the workplace violate the law unless the employer can show that they are justified by business necessity.

• A rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, will rarely be justified.

• An English-only rule should be limited to the circumstances in which it is needed for the employer to operate safely or efficiently.

• Circumstances in which an English-only rule may be justified include: communications with customers or coworkers who only speak English; emergencies or other situations in which workers must speak a common language to promote safety; cooperative work assignments in which the English-only rule is needed to promote efficiency.

• Even if there is a need for an English-only rule, an employer may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of violating it.

Some examples of how this would work would be having a rule that, in case of a workplace emergency, English only will be spoken so all employees can understand; a rule that employees may not use a non-English language to make derogatory statements about coworkers or in order to exclude coworkers; or a rule that no foreign language will be spoken in the presence of English-only speaking customers.

If your boss wants to ban a foreign language at work for none of the reasons that are allowed under discrimination laws, they may be breaking the law. It could well be considered national origin discrimination.

If your boss has an English-only policy that is not justified by business necessity, I suggest contacting HR to report this national origin discrimination. Report it in writing so you have proof of what you reported. Call it "Formal Complaint Of National Origin Discrimination," and explain the new prohibition against speaking another language. If they won't correct the situation or if they retaliate, you should either file a Charge of Discrimination with EEOC or contact an employment lawyer in your state to discuss your rights.

Is It Time To Terminate At-Will Employment Laws?

Montana remains the only state in the nation that does not have at-will employment. At-will means you can be fired for any reason or no reason at all. Boss in a bad mood? That's a firing? Doesn't like your shirt? You're outta there.  Sure, there are exceptions like discrimination and whistleblower laws, but otherwise you're at the mercy of your boss.

So why haven't American workers risen up and said it's time to terminate at-will employment?

Well, maybe they're finally starting to, thanks to SEIU. In February, New York City saw a proposed just-cause bill introduced to protect fast-food workers at the behest of SEIU. Philadelphia passed a just-cause ordinance to protect parking industry workers last week, also at the urging of SEIU.

Montana, unlike every other state, requires employers to have just cause before they fire workers. And isn't that fair? Your family's ability to buy food and pay for shelter depends on your job. Most Americans are $400 of unexpected expenses or lost wages away from financial meltdown. Montana has had this law since 1987, and businesses are still there, the economy still functions and the state hasn't exploded, despite dire warnings from naysayers to the contrary.

Under Montana's Wrongful Discharge from Employment Act, MCA 39-2-901:

(1) A discharge is wrongful only if:
(a) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy;
(b) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or
(c) the employer violated the express provisions of its own written personnel policy.
(2) (a) During a probationary period of employment, the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason.
(b) If an employer does not establish a specific probationary period or provide that there is no probationary period prior to or at the time of hire, there is a probationary period of 6 months from the date of hire.

Pretty reasonable, huh? If New York and Philadelphia get the ball rolling, maybe other cities and states will follow. American workers deserve to have some stability and a regular income as long as they do their jobs.

Let's finally give notice that we're going to terminate at-will employment laws.

Is Your Offer Letter A Contract? Of Course It Is

I see offer letters that make a specific job offer and then say, by the way, this isn't a contract. Guess what? Offer plus acceptance equals contract. I don't care what that disclaimer says, it's still a contract.

Now, what the contract means is another thing. It may say you're at-will, which means they can fire you for any reason or no reason at all. Some states have exceptions to the at-will doctrine. In all states, at-will still doesn't affect your rights under discrimination and whistleblower laws.

Your offer letter probably has your starting position and salary listed. That means the employer is bound by this once you accept. If you're at-will, they can change it, but luring you in with a promise of a management position and high pay and then making you a minimum wage janitor is not only a breach of contract, but is likely fraud.

The offer letter probably also lists benefits and other terms. You are bound by the terms, as is your employer.

Of course, if you sign a more detailed agreement when you start, then the offer letter may be no longer in effect. Most contracts say they supersede all prior contracts. Be careful to read what you sign, especially that giant pile of papers they give you when you start. Don't sign something you can't live with.

If it turns out that the employer had no intention of living up to its deal when it made the offer, such as offering a nonexistent job or benefits, then you could have fraud claims along with your breach of contract claims.

So make sure to keep a copy of that job offer. If it's an email, print it and keep it. Keep anything you sign. It may be a contract, and it might come in handy later. It might also contain post-employment obligations you have to comply with such as a noncompete agreement.

If there's something you don't understand in the offer, make sure you get clarification before you accept. Offer plus acceptance equals contract. If the company is bound, so are you. Pay attention to what you are agreeing. If you don't understand it, get legal advice from an employee-side employment lawyer before you accept.

It's Illegal For Employers To Demand You Buy From Them, Or To Not Buy From A Competitor

For some reason, lately I'm running into employers that are firing employees because they are doing business with a competitor or a merchant they don't like. In Florida, and I'm guessing in some other states, this is flatly illegal.

An employer in Florida cannot demand that an employee buy from them or deal with them. Nor can an employer demand an employee not do business with any other company.

Fla. Stat. Sec. 448.03 provides: 

Threat of discharge to compel employee to trade with any particular firm or person; penalty.—Any person or persons, firm, joint stock company, association or corporation organized, chartered or incorporated by and under the laws of this state, either as owner or lessee, having persons in their service as employees, who shall discharge any employee or threaten to discharge any employee in their service for trading or dealing, or for not trading or dealing as a customer or patron with any particular merchant or other person or class of persons in any business calling, or shall notify any employee either by general or special notice, directly or indirectly, secretly or openly given, not to trade or deal as a customer or patron with any particular merchant or person or class of persons in any business or calling, under penalty of being discharged from the service of such person, firm, joint stock company, corporation or association shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

The law provides criminal penalties for officers and agents who violate:

448.04 Penalty for officer or agent violating s. 448.03.—Any person acting as an officer or agent of any firm, joint stock company, association or corporation of the kind and character as described in s. 448.03 or for any one of them, who makes or executes any notice, order or threat of the kind therein mentioned and forbidden, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

In 33 years of law practice, I'd never seen this as an issue before. Now I've seen it twice in a few weeks. So this is my reminder that violating this law is a crime in Florida. Please cut it out.

“BE HEARD in the Workplace” Act Attempts To Fix Sexual Harassment/Discrimination Laws

Don't get too excited. It will probably pass in the House, fail in the Senate, and be vetoed even if it does pass. But still, the “BE HEARD in the Workplace” Act (short for “Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act”) just introduced would be a major step in the right direction on sexual harassment law.

The bill would fix some major issues with existing sexual harassment laws that I've been complaining about for years:

Intern sexual harassment would be illegal: Right now, there is not a single federal law making sexual harassment of unpaid interns illegal. They aren't employees, so Title VII doesn't protect them. New York City, along with Washington, D.C., Delaware, and Oregon, have laws against sexually harassing unpaid interns. Otherwise, interns are currently sitting ducks in the workplace. The law also extends protections to  independent contractors, interns, fellows, volunteers, and trainees, regardless of remuneration or academic credit, and employees of smaller companies (right now it's 15 or more employees, so small employers get a free pass unless there's a state or local law saying otherwise).

Protection for LGBTQ employees: This law would add gender identity and sexual orientation to Title VII protections, clearing up any doubts about whether Title VII currently protects these employees (which I think it already does based on Obergefell).

Damages fixed: While age discrimination cases are currently subject to different damages and all damages are capped, this would eliminate damage caps and eliminate the ageist bias in the current law.

Fixes sexual harassment standard: The law would eliminate the ridiculously difficult-to-prove "severe or pervasive" standard (which management-side lawyers and some courts say is severe AND pervasive), clarify that sexual harassment is a form of workplace harassment, define workplace harassment as a practice that unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment, and identify factors to be used to determine whether a practice constitutes workplace harassment, but also clarify that no single factor alone can determine whether a practice constitutes workplace harassment.

Fixes standard of proof: The law clarifies that employees must only prove that discrimination or retaliation was a motiving factor under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Nondiscrimination Act (right now courts have said that age must be the sole factor in age discrimination cases, and for all it must be both a substantial and a motivating factor).

Statute of limitations: Changes the statute from 180/300 days (depending on the state, which is silly) to file with EEOC to 4 years.

No mandatory arbitration: The law prohibits pre-dispute mandatory arbitration agreements, and creates guardrails for post-dispute arbitration agreements.

Contractor discrimination prohibited: The law reinstates the Obama ExecutiveOrder reversed by Trump that ensures federal contractor compliance with workers’ rights laws, including maintaining workplaces free from harassment and discrimination. 

These are just a few of the key provisions. It's basically my wish list for fixing employment law, so thanks to the bill's sponsors Senator Patty Murray, Congresswoman Katherine Clark, and Congresswoman Ayanna Pressley.

Now, if only it had a chance in he** . . .