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** . . .

Did Your Employer Misrepresent Your Job Or Withhold Vital Information? That May Be Fraud

It’s not unusual that people are duped into giving notice at their job, only to have the offer pulled or find out the job is nonexistent. Some folks get lured into a job with promises of higher pay, better title, specific hours or location, and it turns out that the representations made to lure them in weren’t true. If this happens, you might have a case for fraud.

There are two types of fraud that Florida courts recognize in these situations. The first is a false statement made, knowing it is false, intending that you rely on it. A good example is what happened in Gandy v. Trans World Computer Tech, 787 So. 2d 116 (Fla. 2d DCA 2001). There, an employee alleged that he was induced to terminate his lucrative business as a freelance consultant with the promise of long-term employment as a manager. The employee alleged that, when the offer was made, the company had no intention of keeping him as a long-term employee but rather intended to force him to quit after a division was created. These allegations withstood a motion to dismiss.

So if you leave your job based on an offer that you'll be the manager, only to find out you're the janitor or secretary, said you'd be paid $100K/year and then paid much less, or if you find out you were only hired to be a temp to fill in for someone out on disability or maternity leave, you might have a fraud case. You may also have a breach of contract case, but that's another post for another day.

The other type of fraud is fraudulent concealment, basically, failure to disclose information that the employer has that would have made you decline the offer. A good example is what happened in Telesphere International, Inc. v. Scollin, 489 So. 2d 1152 (Fla. 3rd DCA 1986), where the employer, through a principal, had fraudulently induced an employee to join the company by deliberately failing to inform him that the system he was hired to market would fail and he would be discharged. The appellate court found that the plaintiff had pled the elements of actionable fraudulent concealment: the defendant deliberately and in order to deceive withheld material facts from plaintiff, when there was a duty to disclose, where the party making the representation had superior knowledge in the matter or acted in a confidential or fiduciary capacity, when plaintiff relied on the lack of disclosure to his detriment.

These are just some examples of what would be fraud. I cited Florida cases, but the claims are likely similar in other states as well. So if your employer misrepresented the job or the pay, or withheld vital information, you might have a remedy.