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Wednesday, August 21, 2019

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.

Monday, August 12, 2019

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.

Monday, August 5, 2019

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.