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, March 15, 2019

9 Ways A DUI Can Destroy Or Damage Your Career

I saw at least six stories last month about people being fired for having a DUI. See here here here here here and here. Oddly, the majority were police officers, who should know better. If you are arrested for a DUI, the consequences go way beyond possible jail time. You may not be aware that a DUI can have a devastating impact on your job.

Here are 9 ways a DUI can destroy or damage your career:

  • Suspended license: If your license is suspended and you don't get an exemption for driving to/from work (many states allow this exemption under certain circumstances) then you're taking an Uber, a taxi, hiring a private driver, or taking the bus to and from work. Taking the bus is pretty unreliable and you can end up losing your job due to lateness. Plus, if your job requires you to drive, you're out of luck.
  • Mandatory firing policy: Many employers provide in handbooks and employment contracts that conviction of a crime is grounds for firing. If your employer has that policy, you may lose your job. Employers who have this policy usually require you to notify them immediately upon an arrest.
  • Insurance loss: If your job requires you to drive, and if you manage to keep your license, your insurance company may not insure people with DUIs. If you are covered by company insurance for driving a vehicle or heavy equipment, your employer may lose coverage if they keep you employed. Your employer may have no choice but to fire you. Even if you manage to be covered, your insurance, and your employer's, will be more expensive. Your employer may not want to pay extra to keep you.
  • Diversion program: If you're lucky enough to qualify for a diversion program that lets you avoid jail time, there could still be mandatory notification of your employer and even required visits to you at work. If you can show that your handbook provides that conviction of a crime is grounds for firing, then some states may waive this requirement. However, some states require a guilty plea for entry into a diversion program, and if your employer finds out you've been convicted, you'll likely lose your job.
  • Professional license: Many professional licenses, such as for lawyers, nurses, doctors and even plumbers require that any arrest be disclosed to the licensing agency. Depending on your state and the agency, it could affect your license. Lose your license, lose your job.
  • Missed work: You'll miss work for court appearances and possibly for mandatory alcohol treatment. There could be mandatory imprisonment. You could get hit with excessive absenteeism. Plus, there's the embarrassment of explaining why you have to be out.
  • Job applications: While some states don't allow employers to ask about arrests and convictions on job applications, most do. Plus, your DUI will appear in public records and on your driver's license records. And that mug shot won't be pretty
  • Education: Many colleges and universities ask if you have any criminal convictions. Similarly financial aid applications may be affected by a DUI. You may have to prove you've gone through a treatment program, or may lose out altogether.
  • Commercial driver's license: A DUI will show up on your commercial driving record for 55 years. If you're a commercial driver, your career is possibly at an end.

So, what do you do if you're pulled over and you've had a few? I'm an employment lawyer, not a criminal defense lawyer, but based on my research here are some pieces of advice that seem to be universal:

  1. Stay calm: Police are looking to see if you are agitated, nervous or belligerent. Be polite and calm at all times. Pull over to a safe spot. They are watching how you pull over.
  2. Open your window: It may be cold (or hot) out, but you need to clear the alcohol fumes. Plus, you will need to speak with the officer. Do it as quickly as you can. I've heard of people refusing to open the window beyond a crack to pass the license and registration. I don't have any idea if this actually works or just ticks off the police officer even more.
  3. Get your license and registration ready: You don't want them to see you fumbling or dropping things.
  4. Speak as little as possible: Look at them but point your mouth away from the officer's face. If you are asked where you are coming from, if you've been drinking or how much you've had to drink, don't answer. Say, politely, something like, "I have nothing to say." If you say any more, you may slur your words, and they will smell your breath. If you admit you had dinner with friends, came from a bar or club, or were drinking even one drink, that evidence can and will be used against you.
  5. Refuse the field sobriety test: You don't have to submit to the field tests they give, like walking in a straight line, touching your nose, etc. They don't have to tell you that you can refuse. You can. Refuse. They're subjective and even sober people can fail.
  6. Portable Breathalyzer: The advice I've found on taking the portable Breathalyzer is mixed. The majority seem to be against it, but you'll be taken to the station if you refuse. If you decline, you might say something like, "I'd prefer to go to the station to be tested."
  7. Blood versus breath: I've also seen mixed advice on choosing the blood test versus the Breathalyzer, if your state allows the choice (and you may have to ask if you have the choice). The blood tests are more accurate but samples can be retested. Breathalyzer results may be more easily challenged, but also give more false positives. In most states, refusing to be chemically tested is a crime in itself, so you may not want to refuse.
  8. Ask to be videotaped: If you really aren't impaired, ask the officer if they have a video camera and if it is turned on. If it is off, ask them politely to turn it on. If you're impaired, you're probably better off not being on tape.
I'd love to hear from criminal defense attorneys in the comments as to your best advice for people stopped after drinking.

The best advice is to not drink and drive. If you have been drinking at all, call Uber, call a taxi, take a bus or order a car service. AAA offers a "tipsy tow" or "tow-to-go" service in certain states for big holidays and events like New Year's and the Superbowl. The National Highway and Transportation Safety Administration has an app to help you call for a ride. AAA has published a list of sober ride services by state. Put the service of choice on your contacts list and call them if you've been drinking.

If you are arrested for a DUI, contact a criminal defense attorney right away. Then you might want to talk to an employment lawyer in your state about how it will affect your job.

Friday, March 8, 2019

I'm Being Fired! What Do I Do Now?

You're called into a meeting with HR and your boss. You know the axe is falling. Here some do’s and don’ts to consider if you are called into a meeting and fired:

DO'S 

1. Do work as long as you can.

If they are giving you the option to work for a few more weeks or months, do say yes. It's way easier to get a job when you have a job. Take that time to send out resumes and pound the pavement. Just make sure you still do your job while you're there, and don't start copying trade secrets or confidential information. That will just get you into trouble.

2. Do ask about getting your personal items. 

Many people leave their belongings behind. Security or HR might have to accompany you, but do get your stuff. They aren't allowed to keep your belongings. On the other hand, if it's in your work computer, your company phone, a company notebook, or something else they own, it's theirs. They don't have to let you print or copy anything that's in their property.

If it's important, keep it in your briefcase, your purse, or at home so that this doesn't happen. If you've, for instance, been keeping a log of every sexually harassing comment that was made, you may lose it now. That's why you never keep it on your work computer.

3. Do ask about your insurance. 
Are they cutting off your insurance that day, at the end of the month, or later? If you have an upcoming doctor's appointment or surgery, you need to know ahead of time whether or not you'll be listed as covered.

If coverage is getting cut off, it will be reinstated retroactively once you elect COBRA and make your payment. If you paid your share of insurance through the end of the month, remind them. They may extend your insurance at least through the time you've paid, or refund you the difference.

4. If no severance is offered, do ask about it. 
They may offer it if you ask. Don't agree to or ask for any amount on the spot (you're not thinking straight, remember?) You might want to talk to us to see if you have potential claims against them before you decide on an amount. If they do offer severance, ask them to put it in writing. Get legal advice before you agree to anything you don't understand.

5. Do ask if the company has a severance plan or policy.

You'd be surprised how many have written severance plans that don't require a release, yet they try to get you to sign one anyhow. Or they try to throw in a noncompete agreement that's not required.

If you're already entitled to severance without signing anything, then maybe you can negotiate more in exchange for a release or noncompete agreement.

6. Do ask when you'll get your final check.

Some counties and states have deadlines for employers to pay, some do not. Don't assume you'll be paid in the next pay period.

Also, if you're owed commissions, find out if they intend to pay them. If there are deals you've made that are in the pipeline, they may owe you money once they close.

7. Do ask why you're being terminated. 

Here in Florida they don't have to give a reason, but in some states they do. However, if they refuse to give you a reason, or give you a different reason than they give to unemployment or the EEOC, that may help you with your legal claims down the road.

8. If they claim you signed a noncompete or confidentiality agreement, do ask for a copy.

You need to understand what you signed. Many employers don't provide copies when you sign these agreements at the beginning of your employment. But if they want you to comply, they have to give you a copy so you understand your restrictions.

If they won't give a copy, or if you think your agreement might not be enforceable, contact an employee-side employment lawyer to review your options with you.

9. Do ask what co-workers and potential employers will be told.

It's important to know what to say to potential employers. It's also important to make sure the company rumor mill isn't fed with misinformation. Get on the same page with them if you can.

10. If they ask you to resign, say no. 

Unless you're being offered substantial dollars in exchange for a forced resignation, what's your upside? You'll probably be disqualified from getting unemployment. You may accidentally give up some discrimination, whistleblower or other claims.

Some people think it looks better to potential employers to say you resigned, but really, who do you think you're fooling? In this economy, almost nobody resigns without having another job lined up. They'll know something bad happened, so why make it easier on the former employer by quitting?


DON'TS 

1. Don't sign anything. 
You aren't thinking straight. When they shove a severance agreement, disciplinary report or other paperwork in front of you, take a deep breath, and ask for a copy to review. Take a look at it once you've had a chance to calm down.

If there's anything you don't understand, take it to a lawyer to have it reviewed before you sign. You may be giving up rights you shouldn't, or maybe you have some leverage to negotiate for more money.

You especially don't want to accidentally sign a noncompete agreement that limits your ability to work for a year or two, unless you understand it and are getting some substantial dollars for it.

2. Don't yell, curse or make a scene. 
You don't want to burn bridges. You still need these people, as much as you hate them right now. They will be on your resume for many years. They'll have to give references on you.

Plus, if you tick them off they're more likely to challenge your unemployment. They can make your life even more miserable right now, believe it or not. I've known many employees who were fired or laid off and who ended up getting rehired down the road.

3. If you believe they got it wrong, don't argue or beg. 
If they got the wrong person or there's something you can prove is incorrect, you can tell them calmly. However, very few employers will change their minds at this point.

If your proof is at home or is something you need to provide in writing, then wait until you've cooled off, put together your information in a business-like fashion, and send it later.

They may have an appeals or grievance process. Follow it.

4. Don't admit to a crime or wrongdoing.

Sometimes, the employer will lock you in a room with Loss Prevention and say you can't leave unless you sign something admitting that you stole inventory or did something wrong. Don't do it. You're already going to be fired -- don't let them fool you. "Just sign and you'll still have your job," they might say. They're lying. The only question is whether you'll also end up in jail or with a big judgment against you.

If they say you can't leave, open the door and go anyhow. If they block the way, pull out your cell phone or pick up the phone in the room and call 911. If you don't have a phone and they block your way, demand to be allowed out. If they still won't let you go, scream at the top of your lungs for help. That's the one time I recommend making a scene. (Don't touch anyone though). Eventually you will be allowed out of the room. Call 911 the second you leave the premises and tell the police what happened. Then call us (or a criminal defense attorney if you need one) and get advice.

But whatever you do, don't sign something admitting to a crime. Ever.

5. Don't demand to say goodbye. 

You don't have the right to have a big farewell scene with co-workers. You're upset and will probably embarrass yourself. If co-workers approach you right after you've been fired, stay calm. Don't badmouth the company or the boss. Leave with class and you may keep the doors open to come back someday.


While being fired is right up there with a death in the family as one of the most stressful things that can happen to you, with lots of self-control and a little preparation, you may help ease your transition a bit. If you do have any potential claims against the company, you hopefully won't have done anything to damage your case. More importantly, you won't have burned any bridges.

Friday, March 1, 2019

I Think I'm About To Be Fired! What Do I Do?

With layoffs happening in droves right now, many people are wondering what to do if the axe falls. While this is a stressful time, it’s also an opportunity to prepare. Here are some things to think about if you are about to be fired or laid off:
  • Potential claims: If you think you’re being singled out due to race, age, sex or national origin, start writing down the ways you believe you’ve been treated differently. If you are objecting to or refusing to participate in something illegal, make sure you document it. A discrimination or whistleblower claim might give you leverage to negotiate a better severance package. Now might be a good time to have a strategy session with an employee-side employment lawyer about how to document your case.
  • Look for a job: No matter why you may lose your job, polish your resume. It's way easier to get a job if you have a job. Don't procrastinate.
  • Signing termination papers and severance agreements: If your employer hands you a resignation or termination paper to sign and you’re not getting any severance, take a pass. If you will receive severance, be careful before signing an agreement. You may wind up agreeing to something costing you more than the amount of your severance, such as a requirement to turn down a job offer from a competitor. If the employer wants you to sign a non-compete clause and the restriction is longer than the number of weeks of severance, it’s probably not worth signing unless you’re going into an entirely new field. If you don’t understand everything in your severance agreement, have a lawyer review it with you to discuss claims you may have that could be potential leverage that you have that might get you a better package, and any changes to the agreement language that are necessary. 
  • Exit interviews: Some companies say you’ll need to give an exit interview after you’ve been fired. That’s because firms use exit interviews to cover themselves in case departing employees later claim discrimination or something illegal. Here’s the truth about an exit interview: Your employer can’t make you go to one. I’d suggest not giving an exit interview unless the firm offers to pay you the equivalent of your salary for the time it takes to do one. The trouble with exit interviews is that anything you say can come back to bite you later. I’ve seen people who were accused of making threats or engaging in inappropriate behavior during their exit interviews. If you do have the session, avoid the temptation to blast your supervisors or complain about their incompetence or mismanagement. Remember: These are the people who will be giving references to potential employers. So no matter what you think of them, hold your tongue. It could serve you well in the future. 
  • Gather your documents: Start gathering documentation of anything they owe you (commissions, bonuses, contracts, etc.), proof of any deals still in the pipeline you think you may be entitled to be paid on after you leave, copies of all employment agreements, confidentiality agreements and noncompete agreements you signed, your performance reviews, evaluations, commendations, awards, write-ups, disciplines, recommendation letters -- anything you can get about your performance, bad or good anything else you think might be useful to a lawyer or to unemployment. Copy any thank you notes, letters or great comments you’ve received from your boss; take any plaques, certificates and awards home (in case you’ll be asked to leave abruptly) and get a copy of your personnel file if you can, as well as the employee handbook and benefits policies. Be discreet, though. Don’t empty out your office in one day. If you do, your employer may say you quit. 
Hopefully you'll never be in the situation of losing your job, but be ready if you think it's about to happen. When the axe falls, you'll be too stunned to act rationally. Next week I'll talk about what to do during that termination meeting and right after.
 



Friday, February 22, 2019

Can My Employer Enforce A Noncompete Agreement I Never Signed?

Many times, employees ask me if their employer can enforce a noncompete or nonsolicitation agreement they never signed. The short answer is no, at least in Florida. The Florida noncompete statute says:
(1) Notwithstanding s. 542.18 and subsection (2), enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of business, is not prohibited. In any action concerning enforcement of a restrictive covenant:
(a) A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.

So that's that, right? End of post.

Nah. It isn't that simple. Because probably 90% of the people who swear up and down to me that they never signed one, actually did. If you're the kind of person who signs that stack of paperwork HR put in front of you on your first day without reading, you very likely signed a noncompete or nonsolicitation agreement.

Plus, the noncompete provision might have been hidden in something that seemed innocuous like a "confidentiality agreement," "bonus agreement," or "stock option agreement." You wouldn't think something with those titles would restrict your ability to work, but trust me, they do. You need to read every single thing your employer asks you to sign, before you sign it, and keep a copy.

You'll notice that the statute doesn't require the employer to sign. Even if there's a blank signature line for the employer to sign, that isn't necessarily a magic wand to get you out of the agreement. Odds are, the employer has a copy they signed after you sent your signed version back. Or they'll sign it speedy quick before they sue.

The other issue is electronic signatures. Many employers have employees do their initial paperwork online, so they click something and it says they've signed. That doesn't necessarily get you out of it either. Florida has a whole set of laws on electronic signatures. Bottom line, "Unless otherwise provided by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature." Florida has also passed the Uniform Electronic Transaction Act," which allows electronic transactions, with some exceptions. So maybe if the company messed up the electronic signature or you didn't actually check the box to sign, you have a defense.

In general, if you didn't sign a noncompete or nonsolicitation agreement in Florida, it can't be enforced. But odds are, you may well have signed and not even realized it. I'll say it again: You need to read every single thing your employer asks you to sign, before you sign it, and keep a copy.

Friday, February 15, 2019

How To Tell If You Were Targeted For Layoff Due To Age

Layoffs seem to come in waves, and I'm seeing more of them right after the holidays, and there have been some big layoff announcements. If another recession kicks in, we'll see even more. Older employees, along with the disabled and pregnant employees, are the most targeted employees in layoffs. There seems to be an assumption that the "old guys" will be retiring soon anyhow so it doesn't matter. It does. Targeting older employees is illegal.

How do you figure out whether you were selected due to your age? Here are some factors to consider:
  • Comments: If your boss makes comments about age, that's direct evidence of age discrimination. Referring to older employees as, "geezer," "old man," or "pops," may indicate age discrimination. It can be more subtle. Saying the company wants a "young image," asking questions about your energy level or saying you may not be able to keep up with the new changes can all be evidence of age discrimination.
  • Different treatment: If you are selected as one of the employees to be laid off but younger, less qualified employees are kept on, then that is also evidence of age discrimination. Let's say the position requires a certification. You have it but the younger employee is working to get it. You're more qualified. Seniority can also be a measure of your qualifications. If you've been in the position for 20 years with all good reviews and the younger employee has only held the job for a year, that's a good indication that age discrimination is occurring.
  • Different options: If you are told you have to take the severance, where younger employees are given the option of stepping down to a lower paying position, then that could also be age discrimination.
  • Disparate discipline: Since the company is looking at disciplinary history, if you are suddenly targeted for discipline for picky things that younger employees also do and aren't disciplined for, then that is another sign that you are being targeted due to age.
Sometimes, you're given the option of taking a demotion rather than a layoff. If others are offered this option but the older employees aren't, that could be age discrimination in itself. On the issue of stepping down versus taking the severance package, that's a decision you need to weigh carefully. If your retirement benefit (assuming you work for the rare company that still has one) is measured by your last year or several years' pay, then you may want to go for the severance package if offered. On the other hand, if you aren't vested or can't retire yet and only have a few years left, stepping down may be the best option. This might be a good time to meet with your accountant or a financial planner to discuss the best options for you.

If you think you're being targeted due to your age, talk to an employment lawyer in your state. Sometimes age discrimination can give you leverage to negotiate a better severance package.

Friday, February 8, 2019

Age Discrimination In Hiring Is (Mostly) Illegal. Here Are 3 Ways To Prove It

The 7th Circuit Court of Appeals says it is not illegal to refuse to hire older employees. They followed the 11th Circuit in this. Fortunately for those of you not living in Illinois, Indiana, Wisconsin, Florida, Georgia or Alabama, age discrimination in hiring is still illegal under Federal law, until the Supreme Court says otherwise. It's also still illegal here in Florida and other states that have their own anti-discrimination laws that include coverage for applicants.

So you weren’t hired for the job and suspect age discrimination. But how do you prove it? Here are three ways you can prove you weren’t hired due to age discrimination:

Direct evidence: The interviewer made comments about your age indicating bias. Maybe they asked, “Aren’t you getting close to retirement?” or “How much longer do you plan to work?” Or your age wasn’t disclosed in your resume but when they see you they ask, “How old are you?” or “What year did you graduate?” Or maybe they said something really dumb like what EEOC says happened at Seasons 52: "Unsuccessful applicants across the nation were given varying explanations for their failure to be hired, including 'too experienced,' the restaurant's desire for a youthful image, looking for 'fresh' employees and telling applicants that Seasons 52 'wasn't looking for old white guys.'' That stuff cost Seasons 52 $2.8 million. While direct evidence is rare, it’s great stuff.

Disparate treatment: You are clearly the best qualified candidate. The ad calls for a Master’s Degree in Finance and you have a Doctorate in Finance. The person hired has a B.A. in Psychology. If you can prove that you were the more qualified candidate and that the person who was hired was younger, then you have what’s called a prima facie case of age discrimination. It would be up to the employer to prove that they had a legitimate reason other than age. That doesn’t mean they couldn’t prove there was another reason besides age discrimination, but it’s certainly enough to talk to a lawyer about.

Disparate impact: Even if you don’t have evidence that the employer intended to discriminate against you based on age, there could be hiring requirements that have a disparate impact on older employees and that don’t have a real relationship to the job. For instance, if you’re applying for a legal secretary position, a requirement that you have 20-20 vision without glasses or be able to run a mile would have a disparate impact on older employees (and the disabled, but I won’t get into that). The requirement wouldn’t be justifiable by any business necessity. However, if the requirement is that you be able to type 60 words a minute, that could be a legitimate job prerequisite.

If you can prove any of these three things, then it’s time to either file a charge of discrimination with EEOC (yes, you can do this unrepresented, just like you can file a lawsuit pro se or do surgery on yourself if you want), which is a prerequisite to filing a lawsuit for age discrimination or, better yet, to contact an employee-side employment lawyer in your state about your rights. I'd suggest filing even if you live in one of the six states covered by these terrible decisions, just in case the Supreme Court decides otherwise. You can also check out your state law and file with your state agency if your state law covers applicants.

Friday, February 1, 2019

If My Office Is Closed Due To Snow Or Ice, Do I Get Paid?

It's that time of year again. With 75% of the country getting hit by the polar vortex, I thought I'd better re-run this ever-popular and necessary piece.

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 and neither does Texas, (so maybe it’s a good time to start complaining to your legislators).

Disaster Unemployment Benefits: If you live in in an area declared a disaster area, you may qualify for disaster unemployment assistance. I don't think any areas have been declared yet, but 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.

In the meantime, here in South Florida, I've had to drive with my convertible top up due to temperatures in the 50s. Sad. 

Friday, January 25, 2019

My Employment Law Predictions For 2019

Honestly, I thought about skipping predictions this year, because what's happening with the president is unpredictable. However, I'll take my best shot. Here are my predictions for employment law in 2019:

  • Florida might be more pro-employee: Although our new governor was a Trump pick, I don't think that's the end of the story. He's already fighting to lift some legislatively-imposed restrictions on medical marijuana. His new Chief of Staff was also Charlie Crist's Chief. You might remember that Charlie, although a Republican at the time, was actually pretty good for employees in Florida. I'm thinking we might get some pleasantly pro-employee action out of Tallahassee this year. The legislature is still gruesomely anti-employee though. So we'll see if the new governor can make a difference for working people.
  • More anti-employee executive orders: One thing that Trump has been consistent with is his attacks on working people. He'll continue his anti-employee agenda.
  • More anti-employee federal agencies: All the federal agencies that are supposed to be helping working people, like OSHA, DOJ, EEOC, and NLRB have become more anti-employee under Trump. That will continue.
  • Anti-employee Supreme Court: The Supremes will be pretty consistently anti-employee. They already upheld the transgender military ban. It will only get worse.
  • Pro-employee legislation in the House: The House will pass multiple pro-employee laws. The Senate won't. Even if something miraculously got through, it wouldn't be signed. Sad.
  • Legal marijuana will spread: Despite repeated promises from the Trumpian DOJ to crack down, more states will legalize marijuana. Some will even protect employees from being fired for legal use, or from being fired for approved medical use.
  • Federal employee slavery will end: Eventually, the shutdown will end and the enforced work-without-pay of federal employees will end. Will this cause federal employee unions to demand more protections? Will people leave the federal government in droves knowing this could happen again and again? Very possibly.


Overall, we'll have a bad year for employees, with some possible hope in Florida for a change. Vote better folks.

Friday, January 18, 2019

No, Constructive Discharge Doesn't Equal A Lawsuit

Every once in awhile someone tells me they were constructively discharged, so they want to sue. They're surprised when I say, "For what?" That's because there’s no such cause of action or claim. Just because you were constructively discharged, that doesn't automatically equal a lawsuit any more than being fired equals a lawsuit.

Constructive discharge is where an employee quits work for good cause. If you are constructively discharged, the courts treat it as if you were fired. This means some claims that you were illegally fired (worker's compensation retaliation, retaliation for complaining about discrimination, whistleblower retaliation, adverse action discrimination claims, to name a few) are still allowed even though you quit if you’re constructively discharged. If you would have a case against your employer had they fired you under the same circumstances, then you will also probably have a case against them if a court finds you were constructively discharged.

Most courts are reluctant to find an employee was constructively discharged. The standard is usually that no reasonable employee would have tolerated the conditions of employment. For instance, I’ve seen sexual harassment cases as extreme as rape that weren’t found to have been so intolerable that the circumstances constituted constructive discharge by the employer.

For unemployment purposes, if the company cuts your pay, changes your job duties in a major way, changes your shift, transfers you to a new location, that may be enough to be deemed cause attributable to the employer. But you’d better be sure before you quit if you want to make sure you’ll qualify for unemployment. Sometimes the unemployment office will have a website or have someone you can call to get information. Otherwise, you’ll probably want to be sure of your rights before you quit.

In general I recommend against quitting until you have another job lined up. It’s easier to get a job when you have a job. But if your working conditions are intolerable, for heaven’s sake look for another job.

If your working conditions are intolerable due to discrimination, sexual harassment, failure to pay wages, or something protected by law, complain to HR in writing before you quit and give the company a chance to correct the situation.

My exception to the don't-quit-unless-you-have-another-job rule would be if the work situation is dangerous (rape, assault, unsafe conditions). If that's the case, then get the heck out of there. No lawsuit or potential suit is worth your safety.

Friday, January 11, 2019

Can You Get Fired For Defending Yourself Against An Attack? Probably

The viral video of the woman being physically attacked by a customer at McDonalds over an anti-straw law drew much applause from folks who admired the way the cashier defended herself. However, she's now suspended and faces being fired for not allowing herself to be beaten up.

Should you be able to defend yourself if attacked at work? Common sense says yes, but at-will laws say no. Most employers have zero tolerance for workplace violence, so they fire all employees involved in a physical altercation. Most companies don't want to bother determining who started a fight. If a coworker attacks, I usually recommend workers drop into a fetal and yell for help so they can't be accused of fighting. The same would doubly apply to a customer attacking. Hitting a customer, even if you are attacked first, is a big taboo.

What circumstances would help this employee? There are some things that might save her:

Publicity: For one, a public outcry. A viral video and threats of a boycott if she's fired could go a long way toward saving her. However, there will probably still be a mark on her record and she'll be out if she has any other infraction.

Discrimination: If she can point to an employee of a different race, age, sex, national origin, or other protected status who defended themselves and wasn't fired, she might have a discrimination case.

Common sense: If McDonalds uses common sense instead of applying a zero-tolerance policy, then the company might decide to give her an award rather than punishing her. But corporate common sense in HR decisions is rare. They'd rather impose a draconian standard and err on the side of firing.

What do I think will happen? Well, she's hired a lawyer, so the threat of a lawsuit for negligent security might cool HR's jets. I think she'll be put back to work with a slap on the wrist and a cloud over her head. If I were her, I'd start looking elsewhere for a job.

You probably won't have a viral video to protect you, so my advice about dropping into a fetal and yelling for help still applies in most situations for victims of workplace violence.