Supreme Court Says Discriminatory Transfers Are Illegal Even Without Significant Harm

 Up until recently, if your employer transferred you due to race, age, sex, national origin, religion, sexual orientation, disability, or other legally protected status, but you kept the same pay and job title, you might have been out of luck bringing legal claims against them. Most courts, including here in Florida, were saying you had to prove that the transfer caused you significant, serious, or substantial harm.

The Supreme Court fixed that in a recent decision. A female police officer was discriminatorily transferred so her boss could replace her with a male, but the appeals court said she could not prove the transfer caused her a "materially significant disadvantage." The Supremes said nah. 

The standard for suing for a discriminatory transfer is now that you have to prove "some harm with respect to an identifiable term or condition of employment, but that harm need not be significant."

What does this mean? What kind of harm would count? The Court gave some examples:

• Change to less desirable shift
• Change to a role supervising fewer employees
• Change to a less desirable worksite
• Change to a less prestigious position
• Given fewer responsibilities
• Less regular schedule
• Less interaction with upper management
• Given work with less visibility and assigned to administrative work
• Loss of perks like take-home car

While retaliation claims still require proof of a significant disadvantage, discrimination claims do not. Discrimination is, in itself, a harm that is illegal.

If you think your transfer was discriminatory, contact an employee-side employment lawyer in your state to discuss your rights.

Did The Supreme Court Just Make It Legal To Discriminate?

As I'm sure you've heard unless you've been in outer space for the past couple weeks, the Supreme Court ruled that a person who thinks she might want to have a web designer business (but who has never actually designed a website in said business) could refuse to design a website for a gay marriage that she was never actually asked to design. SMH. Let's put aside the issue of whether this should have been a case in the first place, and deal with the question that is on everyone's mind: 

Is it legal to discriminate now?

Answer: Well, no. Not really. But maybe. Sigh.

The actual ruling says this: "Held: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees." Seems not so bad, right? And it has nothing to do with hiring and firing, so it has no express immediate effect on employment discrimination laws. But the decision does open the door to future interpretations that are pretty bad.

The interesting part of this ruling is that it isn't based on religion. The Court didn't say people can use their religion to discriminate. At least not yet. Well, at least not in this particular opinion. Instead, they based it on free speech.

So people are asking me, can I post a sign on my business that says, "We don't hire bigots or homophobes"? The answer is probably, but you probably could have done that before this decision. What you (probably) can't do is post a sign that says, "We don't hire evangelicals." And in places like my county which prohibits political affiliation discrimination, you (probably) can't post a sign saying, "We don't hire Republicans."

The fake web designer in this case swore up and down that she would accept business from LGBTQ customers, and that her only problem was with gay marriage websites. Do we believe her? Heck no. She doesn't even have an active web designer business yet, and the only alleged customer who asked about a gay marriage site is straight and says it never happened. But still. The Court focused not on discrimination against LGBTQ people, but on this: "Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction." They also focused on the fact that her alleged profession is creative one that is "expressive in nature."

So let's look into the future and assume she actually will eventually have a real website design business. Let's assume she will be so busy she needs staff. What will happen if a gay website designer who is married to a person of the same sex applies? Can she say that the business reflects her personal expression and her sincere beliefs prohibit her from endorsing gay marriage  by hiring such a person? Probably a stretch, but I can see it happening. Can she hire the person but say that her sincere beliefs prohibit her from providing insurance to his spouse? Very possible (see the Hobby Lobby case).

How will this case apply to employment law in the future? Well, I have some strong suspicions about how evangelical employers will try to apply it. But what about other employers? What if your beliefs are similar to those of The Chosen? What if your sincere belief is that those who deliberately misgender must, forever after or until they relent, be called by the opposite gender, and those who refuse to use non-binary pronouns, must forever after or until they relent, be referred to as they/them. Can you ask in interviews about the person's beliefs on pronouns and misgendering? Maybe. If so, can you automatically disqualify anyone who says their religion requires the opposite? Hmm. Unclear. If you hire them when they admit that they deliberately misgender due to their sincere beliefs, when you forever call them by the gender opposite that on their birth certificate can they claim sex or religious discrimination? Possibly.

As you can tell, I have lots of questions about this case and how it will apply to employment law in the future. Questions such as:

• Can a man whose sincere belief says women belong in the home now refuse to work with women?
• Can a woman whose sincere belief says that Black people are under the "Curse of Ham" and are thus inferior pay Black employees less than white ones? (This excuse was used to justify slavery).
• Can an employer whose sincere belief is that women are suited only to secretarial work refuse to hire female truck drivers?

This "sincere belief" stuff cuts both ways.

• Can an employer whose sincere belief is that anyone who voted for Trump is ethically deficient refuse to hire Republicans?
• Can a woman whose sincere belief is that anyone who believes that abortion should not be allowed in cases of rape, incest, and for the health of the mother is unfit to lead anyone refuse to grant a promotion to Catholics?
• Can a man whose sincere belief is that anyone who supports book banning is unfit to teach refuse to hire evangelical teachers?

I think these questions will be answered soon. The answer under the law a year ago is no to all of the above. But now, apparently anything goes. So hold onto your hats and just assume things will get crazy before they settle down.

Right now, employment discrimination is still mostly illegal. But that could change. Be ready.

Can I Secretly Record A Conversation At Work?

I thought I'd discuss a question today that I'm asked all the time in my law practice: Can I record a conversation with my employer?

Unfortunately, there's no easy answer to this question, and a mistake can land you in jail. Illegal tape recording can have both criminal and civil penalties. My advice is almost always: When in doubt, don't.

Still, many employees want to record a boss or HR at work, and there are good reasons to do so. If you have a sexual harasser, it's handy to catch them red-handed. It's hard to deny something a judge or jury can hear in the harasser's own voice. Some employees want to record meetings with HR to make sure they get all the important information or to have evidence of the reason given for termination or discipline. Other employees want to get evidence of discrimination or other illegal practices of the employer. Sadly, while you can go to jail if you illegally record a conversation, even of a bigot, there is no law making workplace discrimination a crime in the U.S.

Here's what you need to know about recording conversations at work:

All-party consent: Eleven states, California, Connecticut, Florida, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington, require all parties to the conversation to consent to being taped. Illinois' all-party consent law was found to be unconstitutional. Hawaii, a one-party consent state, requires all-party consent if the device is installed in a private place. Massachusetts bans "secret" recordings. These laws are sometimes referred to as "two-party consent" laws, but if there are three people in the conversation, all three must consent. The Digital Media Law Project has a handy state-by-state resource here. The Reporter's Committee for Freedom of the Press has another detailed state-by-state guide here.

Expectation of privacy: You can almost always record conversations in public areas, because the courts say there's no "expectation of privacy" in those places. Whether or not you are a party to the conversation, if it's out there in public, you may be allowed to tape it. Here's where it gets tricky. Many courts have held that there's little or no expectation of privacy in the workplace. There are cases saying, for instance, that a party to a conference call has no expectation of privacy. If you're in a group meeting at work, is there an expectation of privacy? Possibly not.

As an example, cases in my home state of Florida on the expectation of privacy at work say things like: "Society does not recognize an absolute right of privacy in a party's office or place of business." "[A]lthough defendant may have had reasonable expectation of privacy in his private office, that expectation was not one which society was willing to accept as reasonable or willing to protect." "Society is willing to recognize a reasonable expectation of privacy in conversations conducted in a private home. However, this recognition does not necessarily extend to conversations conducted in a business office."

The problem I have with relying on cases like these to tape at work is the use of weasel-words like "necessarily" and "absolute" and "reasonable." These cases are very fact-specific and that means a court could still find that your boss or coworker had an expectation of privacy. If you get it wrong, you can end up in jail. 

If a meeting is held with a large group of employees, doors open so others can hear or wander in, then I feel pretty comfortable that there's no expectation of privacy. Otherwise, I suggest talking to an employment lawyer in your state about making such a recording.

Unfair Labor Practices: The National Labor Relations Board has waffled on whether employers can ban all recordings at work. In 2015, they said no, such recordings can't be banned. Then in 2021 they said sure, employers can ban recordings. This current board would probably say recordings can't be banned. But since the case law changes depending on who appointed board members, I wouldn't risk criminal prosecution based on this.

Retaliation: If you record a conversation to document illegal discrimination or illegal harassment (we're talking harassment or discrimination based on race, age, sex, religion, national origin, disability, pregnancy, or other protected category, not bullying), then you may or may not be protected against retaliation by your employer. The courts have split on this issue. Depending on your state, your employer may be allowed to fire you for recording a conversation at work.

One-Party Consent: If your state is a one-party consent, you still have to be a party to the conversation in order for a recording to be legal. If you aren't, you can't just place a recording device somewhere at work to record secretly. That's illegal in every state.

Phone Calls: The all-party consent states all make recording phone calls without consent of all parties illegal. There's no expectation of privacy exception for phone calls. Fifteen states require all-party consent of phone calls. The one-party consent states that ban such recordings are Delaware, Illinois, Oregon, and Vermont. A state-by-state guide is here.

To summarize, you can probably tape a conversation at work that you're part of as long as you live in one of the 39 one-party consent states. You can also possibly tape a conversation that's in a public area (lobby, office or conference room with doors open, stairwell). You can maybe tape a conversation in the office behind closed doors. Only 35 states allow recording of phone calls with one-party consent. If you get it wrong, you're in big trouble, so be careful.

My best recommendation in all-party consent states continues to be, when in doubt, pull out your recorder and turn it on. Say, on the recording, "You don't mind if I tape this do you?" If the other person or people say they don't mind, keep recording. If anyone objects, turn it off. Pull out a pad of paper and a pen and take good notes instead. No potential case against your employer is worth risking jail time.

What Can I Do If I Lost A Job Due To A Background Check?

 If your employer or potential employer is going to run a credit check, then they must comply with the Fair Credit Reporting Act. This requirement covers anything the employer is getting from a consumer reporting agency that covers personal and credit characteristics, character, general reputation, or lifestyle, but not the HR department running your name on Google, checking out your Facebook page, or reading your blog. So it depends on who did the background check.

If they are going to run a background check that is considered to be a credit check, and they are hiring an outside agency to do it, they have to give you a document solely for the purpose of telling you they intend to conduct a credit check. It was possibly shoved in with a stack of papers they handed you with your application or pre-employment forms. They need your permission in writing.

They must also tell you if they’re about to deny a job, reassign, or terminate you because of what was disclosed in a credit report. They must give you written notice with a copy of your credit report and a document called "A Summary of Your Rights Under the Fair Credit Reporting Act.”

Once the employer decides to use the report against you, they must then give another notice, this time telling you the name of the agency that did the credit report, saying the agency isn’t the one that made the adverse decision, and telling you how to dispute the information in the report with the agency. This notice can be verbal or in writing, unless you’re a trucker, in which case it must be written.

If an employer runs your credit history though a third party agency without permission, they’ve broken the law. 

But let's say they run the background check themselves. They check your social media and find out, for instance, your race, that you have a disability, that you have a family history of a genetic disease, or that you're pregnant. They aren't allowed to turn you down for a job or fire you on that basis. That's illegal discrimination, and you might have a discrimination case.

If they find an arrest or conviction record, then there are some states that don't allow them to use this against you. Florida is not one of those states. EEOC has taken the position that a blanket refusal to hire based on criminal records can be discrimination, but I haven't seen any cases supporting such a claim. If you are, for instance, male and a female with the same record is not excluded but you are, that could certainly be a discrimination claim.

If they find out you sued a prior employer for discrimination and refuse to hire you on that basis, that could be illegal retaliation and you might have a claim for violation of anti-discrimination laws.

If you think any of this applies, contact an employee-side employment lawyer in your state for advice on how to proceed.

Yes, It's Illegal To Retaliate If HR Managers Or Management Oppose Discrimination

Management-side lawyers are always trying to come up with new ways to make discrimination and retaliation legal. So it's no surprise that they argued in a recent case that there is a "management exception" to retaliation. The theory was that, if an HR manager or other management opposes discrimination as part of their regular job duties, they aren't covered by anti-retaliation laws.

The 11th Circuit has clearly rejected this argument:

The manager exception would carve out of Title VII protection the actions of management employees who have in the course of their normal job performance opposed an unlawful employment action of an employer. That carveout does not fit within the ordinary meaning of the word "opposed," and it is contrary to how Title VII uses the word. For one thing, the statute does not put any qualification on the word "opposed." It does not say an employee has engaged in protected activity unless her opposition came as part of her duties in the normal course of her employment.

Because it's not explicit in the text, to limit the plain meaning of "opposed," the manager exception would have to be implicit in how a person speaking "in ordinary discourse . . . would naturally use the word" opposed. Crawford, 555 U.S. at 277. But the limitations imposed on the word "opposed" by the manager exception would be neither "ordinary" nor "natural" to someone using that word. A person speaking "in ordinary discourse" would think an HR manager has opposed her employer's unlawful employment practices even if it's part of her job to do so. Opposition is opposition, whether the opposer is drawing a manager's salary or not.

It is too big a stretch to think that Congress silently and implicitly wrote into the opposition clause a significant exclusion of an entire category of employees, HR managers. We "assume that Congress does not generally hide elephants in mouseholes." CSX Transp., Inc. v. Ala. Dep't of Rev., 888 F.3d 1163, 1176 (11th Cir. 2018) (quotation marks omitted). That assumption is especially true here where the elephant would have to trample the ordinary and plain meaning of the words Congress did choose.

Whew! Thank goodness. Another attempt to make retaliation legal is rejected. If you're an HR person or other management employee who has opposed discrimination, it's illegal for your employer to retaliate against you. If you think illegal retaliation happened to you, contact an employee-side employment lawyer in your state to discuss your rights. 

New Employer's Retaliation For Opposing Discrimination By A Former Employer Is Illegal

 One of the biggest worries I hear from clients and potential clients is the fear that filing a lawsuit for discrimination will follow them to a new employer. And it's a legitimate concern. A lawsuit is a public record. It will turn up in a background check. Plus, you'll have to testify and appear at hearings in your case, and your new employer will likely find out about your case. Even if it's not your case, what if you're subpoenaed to testify in a former coworker's case?

So, can a new employer retaliate against you for opposing discrimination by a former employer? The 11th Circuit Court of Appeals says such retaliation is illegal.

There is nothing in the anti-retaliation provision's opposition clause that permits an employer to retaliate against one of its employees for opposing an unlawful employment practice of a former employer. The clause forbids retaliation by "an employer" against "any individual" for having "opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a) (emphasis added). It doesn't say "opposed any practice of a current employer made an unlawful employment practice by [Title VII]." A former employer's unlawful employment practice is just as much an unlawful employment practice as one of a current employer. The statutory text makes no distinction between the two. Opposition is opposition, and any unlawful employment practice is any unlawful employment practice.

And the entity that the statutory provision forbids from retaliating is "an employer," not just the employer whose unlawful employment practice the employee opposed. In this context, as is usually the case, the indefinite article "an" means "any." See Alabama, 778 F.3d at 933. Georgia Pacific is unquestionably "an employer," and at the time it allegedly retaliated by firing Patterson it was her employer.

We hold that under the opposition clause's plain language, a current employer may not retaliate for opposition clause conduct even if it is directed at or involves only a former employer. See McMenemy v. City of Rochester, 241 F.3d 279, 284 (2d Cir. 2001) ("We think that Title VII protects an employee from any employer, present or future, who retaliates against him because of his prior or ongoing opposition to an unlawful employment practice or participation in Title VII proceedings.").

This case only refers to an employer, and not a potential employer. A discrimination lawsuit can turn up in a background check and there could be little way to prove that it was the reason you were denied a position. Still, Title VII makes such discrimination illegal:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-­management committee controlling apprenticeship or other training or retraining, including on—the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

The Fair Credit Reporting Act requires that employers provide you with a copy of any background check that caused them to turn down your employment, so it's wise to ask for a copy of any background check to see if a discrimination lawsuit is mentioned.

Bottom line: employers and potential employers can't legally discriminate against you for opposing discriminaiton by a former employer. It's your burden to prove that was the reason, but if you think this is what happened, talk to an employee-side employment lawyer in your state about your rights. 

Some Cool New Laws Pending In Congress That Will Help Employees If Passed

 It isn't all bad news out there. Some bills pending in Congress look hopeful for employees. Of course, they probably won't get through the deadlocked Senate, but hey, let's be optimistic. If you think these bills should become law, call your Senators and members of Congress.

Here are some of the pro-worker bills pending and the descriptions their sponsors have given them:

S.505 - Forced Arbitration Injustice Repeal Act - This bill prohibits a predispute arbitration agreement from being valid or enforceable if it requires arbitration of an employment, consumer, antitrust, or civil rights dispute.

S.3641 - Part-Time Worker Bill of Rights Act - This bill modifies various employment, leave, and pension rules with respect to part-time workers. Specifically, the bill removes the requirement that employees work a minimum number of hours during the preceding 12-month period before becoming eligible for family and medical leave.

The bill also sets the maximum length of service on which employers may condition the eligibility of part-time employees for a qualified pension plan (e.g., 401(k) retirement plan). Except as required by an applicable collective bargaining agreement, such service requirement may be no longer than two consecutive 12-month periods of at least 500 hours of service for part-time employees who have reached the age of 21 by the end of such period.

The bill further prohibits employers of more than 15 employees from setting disparate terms of employment or working conditions for part-time employees, including with respect to compensation, notice of work hours, and promotion opportunities. Additionally, the bill requires such employers to offer available, qualified part-time employees additional work hours before hiring new employees for such hours. Among other enforcement methods, employers must maintain three years of records for offers of additional hours and employee responses to such offers. The bill also provides a private right of action for employees to enforce the nondiscrimination requirements of this bill.

S.3642 - Schedules That Work Act - This bill provides employees with the right to request changes to their work schedules related to the number of hours they are required to work or be on call, the location of the work, the amount of notification about work schedule assignments, and fluctuations in work hours.

Employers must negotiate in good faith with employees who make such requests and comply with certain work schedule notice and split shift pay requirements for retail, food service, cleaning, hospitality, or warehouse employees.

H.R.6762 - Special Inspector General for Law Enforcement Act - there is no description by the sponsor yet, but this would provide whistleblower protections for law enforcement employees who report wrongdoing by colleagues, ending the blue wall of silence.

H.R.7489 - Time Off to Vote Act - This bill requires an employer, upon the request of an employee, to provide the employee with a minimum of two consecutive hours of paid leave in order to vote in a federal election.

The employer may determine the two-hour period, excluding any lunch break or other break.

Taking such leave shall not result in the employee losing accrued employment benefits.

The bill makes it unlawful for an employer to interfere with the right to take such leave or for an employer to discriminate against an employee for taking such leave. Further, the bill makes it unlawful for any employer to retaliate against an employee for (1) opposing any practice made unlawful by this bill; (2) filing a charge, or instituting or causing to be instituted any proceeding, under or related to this bill; or (3) testifying or preparing to testify in an inquiry or proceeding relating to such leave.

The bill specifies penalties for employers who violate these provisions.

H.R.2243 - Fair Pay Act of 2021 - This bill requires employers to provide equal pay to employees for comparable or equivalent work.

Specifically, employers may not discriminate against employees on the basis of sex, race, or national origin with respect to payment of wages or other conditions of employment for jobs that, although dissimilar, the requirements of which are equivalent, when viewed as a composite of skills, effort, responsibility, and working conditions. However, employers may pay different wages in accordance with seniority systems, merit systems, systems that measure earnings by quantity or quality of production, or factors that the employer demonstrates are reasonably job-related, or further legitimate business interests. The bill allows compensatory or punitive damages for violations of this prohibition.

The bill prohibits an employer from (1) discriminating against any individual who opposes any act or practice made illegal by this bill or for assisting in an investigation, or (2) discharging or discriminating against any employee who inquires about or discusses another employee's wages.

The Equal Employment Opportunity Commission must assist employers, labor organizations, and the general public in implementing these provisions.

S.2390 - Support Through Loss Act - This bill provides employees with 24 hours of paid leave time each year for an absence resulting from a pregnancy loss or other specified circumstance related to pregnancy, fertility, or an unsuccessful assisted reproductive procedure or adoption match.

Employers must notify each employee about the availability of this paid leave and may not discriminate or discharge an employee for exercising or attempting to exercise the right to such paid leave.

The bill provides for enforcement of this requirement by the Department of Labor and through civil action brought by an employee or individual.

Further, the bill requires specified federal agencies to conduct research and publish information about pregnancy loss and related evidence-based treatment options.

H.R.1065 - Pregnant Workers Fairness Act - This bill prohibits employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions. A qualified employee is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position, with specified exceptions.

Specifically, the bill declares that it is an unlawful employment practice tofail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity's business operation;
require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

The bill sets forth enforcement procedures and remedies that cover different types of employees in relation to such unlawful employment practices.

H.R.3610 - Flexibility for Working Families Act - This bill allows an employee to request from an employer a temporary or permanent change in the terms or conditions of the employee's employment if the request relates to (1) the number of hours the employee is required to work, (2) the times when the employee is required to work or be on call for work, (3) where the employee is required to work, or (4) the amount of notification the employee receives of work schedule assignments. The bill sets forth certain employer duties with respect to such requests.

The bill prohibits an employer from interfering with any rights provided to an employee under this bill. An employee may file a complaint with the Department of Labor for any violations of such rights. Labor shall investigate and attempt to resolve such complaints and may issue orders making determinations and assessing civil penalties or awarding relief for alleged violations. The bill provides for judicial review of such orders, including in federal courts of appeal.

Labor and certain federal agencies and offices shall provide information and technical assistance to employers, labor organizations, and the general public regarding compliance with this bill.

The Wage and Hour Division of Labor must issue guidance on compliance with providing a flexible work environment through changes in employee terms and conditions of employment as provided in this bill.

The requirements of this bill are applicable to certain classes of employees, including employees of the Government Accountability Office and the Library of Congress.The Equal Employment Opportunity Commission must provide examples of reasonable accommodations that shall be provided to affected employees unless the employer can demonstrate that doing so would impose an undue hardship.

The bill prohibits state immunity under the Eleventh Amendment to the Constitution from an action for a violation of this bill.

H.R.842 - Protecting the Right to Organize Act - This bill expands various labor protections related to employees' rights to organize and collectively bargain in the workplace.

Among other things, it (1) revises the definitions of employee, supervisor, and employer to broaden the scope of individuals covered by the fair labor standards; (2) permits labor organizations to encourage participation of union members in strikes initiated by employees represented by a different labor organization (i.e., secondary strikes); and (3) prohibits employers from bringing claims against unions that conduct such secondary strikes.

The bill also allows collective bargaining agreements to require all employees represented by the bargaining unit to contribute fees to the labor organization for the cost of such representation, notwithstanding a state law to the contrary; and expands unfair labor practices to include prohibitions against replacement of, or discrimination against, workers who participate in strikes.

The bill makes it an unfair labor practice to require or coerce employees to attend employer meetings designed to discourage union membership and prohibits employers from entering into agreements with employees under which employees waive the right to pursue or a join collective or class-action litigation.

The bill further prohibits employers from taking adverse actions against an employee, including employees with management responsibilities, in response to that employee participating in protected activities related to the enforcement of the prohibitions against unfair labor practices (i.e., whistleblower protections). Such protected activities includeproviding information about a potential violation to an enforcement agency,
participating in an enforcement proceeding,
initiating a proceeding concerning an alleged violation or assisting in such a proceeding, or
refusing to participate in an activity the employee reasonably believes is a violation of labor laws.

Finally, the bill addresses the procedures for union representation elections, provides employees with the ability to vote in such elections remotely by telephone or the internet, modifies the protections against unfair labor practices that result in serious economic harm, and establishes penalties and permits injunctive relief against entities that fail to comply with National Labor Relations Board orders.

This is only a sampling of pro-employee laws that could be passed and that are pending right now. It isn't that we don't know how to protect employees. It's that we don't. Talk to your elected officials about these pro-employee laws, and vote well in November and beyond.

Does The First Amendment Mean Anti-Harassment Policies Are Illegal? Florida Court Says Yes

 In a what-the-frack moment, I took a look at what seems to be an opinion that has no relation to employment law, and realized that it has far-reaching implications. The 11th Circuit has ruled that the University of Central Florida's anti-harassment policy that applies to students violates the First Amendment.

Now, granted, as I've said before, the First Amendment only applies to governments. UCF is a government-run school. So this issue will only apply to governments. But it also seems to apply to anti-harassment policies that government employers might try to impose. And it might apply to other anti-harassment policies because of the way the Court analyzed the policy.

The issue was a student who wanted to say stuff like, "abortion is immoral," "government should not be able to force religious organizations to recognize marriages with whihc they disagree," "affirmative action is deeply unfair," and "a man cannot become a woman because he 'feels like one.'" The student said he was afraid to speak up because he might be disciplined under the university's discriminatory harassment policy, which prohibited harassment based on race, color, ethnicity, national origin, religion, non-religion, age, genetic information, sex, pregnancy, parental status, gender identity or expression, sexual orientation, marital status, disability, political affiliation, or veteran's status. 

The Court said that this policy violates the First Amendment because it is content-based, in that the "University must 'examine the content of the message that is conveyed to determine whether' it harasses another student 'based upon' any of a long list of characteristics." They said that, because it is content-based, it is subject to strict scrutiny, and that the policy is very broad. For instance, the Court points to language in the policy that says it's prohibited if the conduct "may be humiliating." 

They also said the policy is illegal because it discriminates on the basis of viewpoint, because it only prohibits speech that is discriminatory.

Well, duh. Of course an anti-harassment policy prohibits speech that is discriminatory. And for a court to say governments can't bar discriminatory speech opens up a can of worms for employment lawyers. Can a government discipline an employee who walks up to a Black coworker and says, "In my opinion, Black people should go back to being slaves," or who walks up to a pregnant coworker and says, "You shouldn't be allowed to work while you're pregnant or have children"? What if the person who says these things is a supervisor? 

So I say again, what the frack? If anti-harassment policies are going to be invalidated because they require employers to actually analyze what was said and whether it is discriminatory, then how can there ever be valid anti-harassment policies in government? And once the courts start saying viewpoint discrimination is illegal, then all bad actors have to do is phrase their discriminatory comments in the form of an opinion.

Will employment law be like Jeopardy? You only lose if you fail to phrase your statement in the form of an opinion?

If anyone can explain why this opinion isn't beyond outrageous, I'd love to hear from you.

Did Florida Make It Illegal To Refuse To Hire White Nationalists, and Yet Make Affirmative Action And CRT Legal? The Utter Stupidity of the Stop WOKE Act.

 The Florida legislature, in its infinite wisdom, has decided to modify Florida's anti-discrimination statute with the Stop WOKE Act. /1

There's a lot stupid about this, but let's unpack some of the most idiotic parts. 

The Whole Thing Is Opposite What They Meant

As has been the Florida Legislature's practice this session, the whole thing says the opposite of what they probably meant. Because the way it reads looks like the entire list (I put the whole list in a footnote below) is something the legislature believes is not discrimination, and should not be taught as such. But what they may have actually meant is that they think the entire list actually is discrimination. They wrote that, "Subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin under this section" is illegal.

But what they should have written instead is: "Subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin under this section" is illegal.

Is it illegal to discriminate against white nationalists?

What really jumps out at me is that employers are not allowed to refuse to hire someone who believes that, "Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin." We're talking white nationalists here. As I read this, employers can't refuse to hire white nationalists in Florida. Taking out all the qualifiers, other types of discrimination, and weaselly language, here's what it says is one of the things that is illegal with respect to race discrimination: 

Subjecting any individual, as a condition of employment, to any required activity that compels such individual to believe the following concept constitutes discrimination based on race: 

1. Members of one race are morally superior to members of another race.

Since white nationalists, by definition, believe whites are superior in every way to non-whites, that means employers can't refuse to hire (or fire once they find out about their beliefs) white nationalists? This is what happens when you put in language deliberately meant to confuse and obfuscate your intent. 

Is Discrimination Based On Your Ancestors' Race Now Legal?

Let's look at another provision that says something stupid. 

The legislature also says that this concept is not discrimination: 

"An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin." 

So now it's also illegal to refuse to hire or fire anyone who believes that they should discriminate against employees or potential employees because of actions committed in the past by other members of the same race, color, sex, or national origin. Did they mean this? Or is it just too many double negatives? Who knows? It's the law now in Florida.

Is Affirmative Action Now Legal?

I think they also just made affirmative action legal, since they say this is not discrimination:

An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.

Hello affirmative action.

Wait, I Thought They Were Against Critical Race Theory

The legislature also decided that employers are not allowed to refuse to hire someone who believes in some key tenets of Critical Race Theory. They also decided that employers can't subject employees to training that says Critical Race Theory is discrimination. Don't believe me? Look at the wording and tell me I'm wrong.

/1The statute now has this language added to it:

760.10 Unlawful employment practices.— 

(8)(a) Subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin under this section: 

1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin. 

2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously. 

3. An individual's moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin. 

4. Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin. 

5. An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.  

6. An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion. 

7. An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin. 

8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin. 

(b) Paragraph (a) may not be construed to prohibit discussion of the concepts listed therein as part of a course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts. 

Yes, Some Small Employers In Florida Can Be Sued For Discrimination

For the most part, discrimination cases can only be filed against employers with at least 15 employees. Federal law and Florida law both limit liability for most discrimination claims to employers with 15 or more employees. But some cities and counties in Florida allow discrimination claims to be made against employers with 5 or more employees. 

Miami-Dade County has such an ordinance. A new case out of the Third District Court of Appeals has confirmed that employees who work for employers in Miami-Dade County that have at least 5 employees can sue for discrimination in court. 

Is that earth-shattering news? No. That ordinance has been in place for many years. But employers have tried to resist lawsuits filed under the ordinance, saying that there is no private right of action under the ordinance. The alternative was to have an administrative hearing in front of the county equal opportunity board, which is difficult to coordinate. Now it's clear that employees can sue and have a judge and jury hear their discrimination case.

Other counties and municipalities in Florida that have ordinances allowing employees of small employers to bring discrimination claims include Broward, Cutler Bay, Miami Beach, Tampa, Orange County, Hillsborough County, Lee County, and Pinellas County. Whether employees can sue under these ordinances or must use local administrative hearings instead will depend on the language of the ordinance. 

In the recent case, the Court pointed to the clear language of the ordinance and found a private right of action exists:

In 2006, the Miami-Dade County Commission amended section 11A-28 to include:

(10) Enforcement by private persons. 

(a) If within one hundred eighty (180) days after a complaint is filed alleging discrimination, the Director [of the Commission on Human Rights] has been unable to obtain voluntary compliance with the provisions of this Article, the aggrieved person may demand a notice of right-to-sue from the Director, the issuance of which shall terminate the jurisdiction of the Director and the Board over such a complaint. Not later than ninety (90) days following receipt of the notice of right-to-sue, the aggrieved person may commence a civil action in a court of competent jurisdiction against the respondent named in the complaint. 

(b) If, in a private enforcement proceeding under this Article, the court finds that a discriminatory practice has occurred or is about to occur it may issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including temporary or permanent injunctive and other equitable relief, temporary restraining order, actual and punitive damages, reasonable attorney's fees, interest, costs or other appropriate relief.

Section 11A-28(10)

The result was as it should be. If a local ordinance provides for a private right of action, then employees can sue in court. 

It is now clear that, at least in Miami-Dade County, if your employer has at least 5 employees, it's illegal to discriminate, and you can sue if they do (after filing a charge of discrimination with the county and giving them at least 180 days to resolve it, and after getting a right to sue letter). 

Can Florida Employees Can Be Fired For Testifying Against Employers?

 Florida has a statute that was clearly intended to protect employees who testify against employers: 

92.57 Termination of employment of witness prohibited.—A person who testifies in a judicial proceeding in response to a subpoena may not be dismissed from employment because of the nature of the person s testimony or because of absences from employment resulting from compliance with the subpoena. In any civil action arising out of a violation of this section, the court may award attorney s fees and punitive damages to the person unlawfully dismissed, in addition to actual damages suffered by such person.

Every lawyer I knew in Florida for 35 years has thought this protected witnesses who testified in depositions under subpoena. But a Florida appeals court ruled this year that a deposition is not a "judicial proceeding" and thus employees can be fired for testifying against their employers.

So is that it? Can employers retaliate against employees for testifying against them, even if they are subpoenaed to do so?

Not so fast, evil employers. Because employees are still protected under several anti-retaliation statutes. First, if they are testifying about race, age, sex, national origin, religious, disability or other illegal discrimination or discriminatory harassment, they are protected under anti-retaliation provisions of Title VII, the Americans With Disabilities Act, the Age Discrimination in Employment Act, and/or the Florida Civil Rights Act.

Second, the Florida Whistleblower Act protects employees who are fired for objecting to or refusing to participate in illegal activity of their employer. So if you are called to testify, make sure you say you object to whatever it is that they did that was a violation of a statute, government regulation, or ordinance. This also includes discrimination, but covers a myriad of other legal violations. Unfortunately, if it's just something like a breach of contract or other common law violation, you aren't protected under this statute.

There are lots of whistleblower laws out there, so if you are called to testify in a deposition and your testimony will hurt your employer, you will want to get some legal advice as to how to protect yourself before you go.

And the Florida legislature needs to fix this statute, because firing someone who is subpoenaed should be illegal, whether for a deposition or an actual court hearing.

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!

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.

Companies Fold As Employees Push Back On Forced Arbitration

First Google had a bunch of employees walk out to protest sexual harassment arbitration, and it rescinded its arbitration policy. Now other companies are following as employees push back. Facebook, Microsoft, Uber, Square, Airbnb and eBay have all rescinded or said they will rescind their forced arbitration agreements for sexual harassment claims.

It isn't just tech firms that are getting pressure from employees. When Harvard law students threatened to boycott law firm Kirkland and Ellis because of mandatory arbitration agreements, the firm quickly did a 180.

Now students at other law schools are joining the fight, and have vowed not to work for law firms that require arbitration of employment law claims. The student statement includes these strong statements against employee arbitration agreements:

Mandatory arbitration agreements prevent employees from seeking justice in court and limit the enforcement of substantive employment rights. Mandatory arbitration forces employees to submit any dispute with their employer to binding, private, and often confidential arbitration—a process which advantages sophisticated, repeat players at the expense of individual claimants.
. . .

Finally, we recognize that mandatory arbitration is a policy that negatively impacts all workers, legal and non-legal, and not merely associates and summer associates. We are committed to including questions about employment practices for all employees in future surveys.

I think it's about time employees push back. Still, I have to wonder how many of these law students will end up going into management-side law practice and forcing employees of their clients to arbitrate, despite their clear knowledge that such agreements are about oppressing workers. 

Now that employees have demonstrated that resistance to arbitration agreements is not futile, I hope unions and other employee groups will take up this fight. And I hope (but seriously doubt) that this new generation of lawyers might actually push their clients to drop forced arbitration of employees.

Majority of States Protect Employees of Small Employers, But Not Florida

We've reached a tipping point where a majority of states now have laws that protect employees of smaller employers. Most federal discrimination laws protect employees only if their employers have 15 employees or more (20 for age discrimination, all employers for Equal Pay Act, 4 - 14 for national origin/citizenship under the The Immigration Reform and Control Act of 1986). But a majority of states have stepped in and decided to protect their working people even if they work for a smaller employer.

Not Florida, of course (except our age discriminaiton law also requires only 15 employees). Florida remains, and will continue to remain after the election, one of the most anti-employee states in the nation.

Still, it's something to give us hope when even many very red states have protected more employees. A total of 37 states, plus the District of Columbia, now protect employees of small businesses. Here's a breakdown of states and how many employees a business has to have to be covered under anti-discrimination laws:

• Alaska - all employers
• Arkansas - 9
• California - 5
• Connecticut - 3
• Delaware - 4
• D.C. - all employers
• Georgia - 10 for equal pay, all for age
• Hawaii - all employers
• Idaho - 5
• Indiana - 6, all for age
• Iowa - 4
• Kansas - 4
• Kentucky - 8
• Maine - all employers
• Massachusetts - 6
• Michigan - all employers
• Minnesota - all employers
• Mississippi - all employers
• Montana - all employers
• New Hampshire - 6
• New Jersey - all employers
• New Mexico - 4
• New York - 4
• North Dakota - all employers
• Ohio - 4
• Oklahoma - all employers
• Oregon - all employers
• Pennsylvania - 4
• Rhode Island - 4
• South Dakota - all employers
• Tennessee - 8, for gender wage discrimination all employers
• Vermont - all employers
• Virginia - all employers
• Washington - 8
• West Virginia - 12, for gender wage discrimination all employers
• Wisconsin - all employers
• Wyoming - 2

Even in anti-employee Florida, some counties and municipalities have stepped up to cover smaller employers. In Miami-Dade, Broward, Hillsborough, Orange, Lee and Pinellas Counties, employers with 5 or more employees are covered by discrimination ordinances.

If 16 states, including even ultra-red Oklahoma, can cover all employees, why won't Florida step up to help its working people? Ask your elected officials.

10 Workplace Rights You Think you Have – But Still Don’t

So I received this email:

Ms. Ballman; 

I happened to come across your article from 2011 regarding 10 Workplace Rights You Think you Have – But Don’t. As both an attorney and a HR/Payroll consultant, your article is either outdated, specific to Florida, or just completely inaccurate. I would urge you to do your research and correct the artcle. If you would be open to discuss the areas of your article that inaccurate, I’d love to provide your details, however, I’m not going to waste my time (or yours) if you don’t care. As it stands, your article provides incorrect information and extreme disservice to employees in general. 

Best Regards,
(name omitted)

First of all, wow, how rude! Is that any way to approach someone you've never met? Yikes! It was so bizarre I thought I was being attacked by a Russian bot or something. Still, I decided to take it seriously. My initial reaction was that a 7-year-old article might well be out of date. So I reviewed it and, sure enough, it's still both accurate and timely. When I asked my emailer for specifics on what they found to be incorrect, their response was, "I’ll just let you look like you don’t know what you are talking  about, since it’s obvious you don’t care." Well, I do care, even though I'm still not sure whether I'm dealing with a Russian bot.

Anyhow, bot or not, I'm posting an updated version.

As an employment lawyer who has represented employees for 32 years, I find that everyone thinks they already know their rights. After years of watching legal dramas and courtroom reality TV, Americans have absorbed lots of legal information. Unfortunately, most of it is wrong. Before you mouth off to your boss about your rights, I thought I'd share with you the top 10 laws most employees think exist- that don't.

1. Wrongful Termination

Most American workers think employers must have a reason to fire you. Surely your employer can’t just be arbitrary and unfair. Surely they can’t just wake up in a bad mood and fire you because they didn’t like your shirt. And there’s the rub. Because, in every state but Montana, your employer can fire you for any reason or no reason at all unless you have a contract saying otherwise. In most states, they don’t even have to give a reason.

But that’s not right, you say. There’s a law against wrongful termination. There must be. Well, there should be, but there isn’t. What we have instead, in 49 states, is at-will employment. At-will employment is that nasty doctrine that says employers can fire at-will, for any reason or for no reason.

Oh, sure, most states recognize some exceptions to the at-will doctrine (my home state of Florida recognizes zero exceptions). Most states find that a termination that is against public policy, such as being fired for refusing to violate a law, reporting a legal violation, doing something in the public interest like jury duty, or exercising a legal right like making a worker’s compensation claim, is unlawful. Another exception a majority of states recognize is an implied contract, which sometimes allows a court to find that a handbook or employer policy is a legal contract. A few states hold that employers owe employees an implied covenant of good faith and fair dealing, but most let employers be as arbitrary as they want to be.

Other protections employees have in the 49 at-will states are: contracts, whether individual or union, saying they can only be fired for cause; discrimination laws; whistleblower laws; the Family and Medical Leave Act; and state and federal employment laws.

But my point is this: if a majority of Americans think employers must have good cause to fire you, why isn’t there a law? Why haven’t legislators who are supposed to represent workers’ interests passed the number one legal protection employees think they have? Legislatures could pass a law like Montana’s Wrongful Discharge From Employment Act of 1987, which lets employees terminated without good cause sue for up to 4 years of lost wages.

We, as taxpayers, are footing the bill for employers who make arbitrary employment decisions. Why not make employers who fire employees without just cause pay for their arbitrariness? Why not at least penalize arbitrary employers through the unemployment compensation system. Why not lift the maximum rate employers can be charged to these arbitrary employers? Why skew the system to punish employees but not employers?

By continuing to allow arbitrary firings without consequences to employers, we end up forcing the unemployed onto food stamps, welfare, and other taxpayer-supported benefits. And small business owners like me end up paying for these arbitrary employers by having higher unemployment compensation tax rates.

2. Right To See Your File

You probably don't have this right, so don't go stomping into HR and making demands. No federal law requires private employers to allow employees to inspect or copy their own personnel files. Only some states require employers to allow you to look at your file and even fewer require your employer to allow you to copy items in your file. Many times, the only way you'll find out what's in your file is if you sue and you get it with a Request for Production, or if you subpoena it in unemployment or other proceedings.

3. Breaks

No federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it's not a majority. No federal law even requires bathroom breaks, but it's probably a health issue, so OSHA might protect you if your employer denies bathroom breaks. If you're a nursing mother, you're entitled to an unpaid break to express breast milk. Some states also offer protection for nursing moms taking breaks. Lots of people get fired for insisting on breaks they're not entitled to. Don't do it.

4. Hostile Environment

A hostile environment is not illegal. Workplace harassment is not illegal. Bullying is not illegal in any state except, oddly enough, Tennessee, and that's only for government employees. If you write a long email to HR or your boss complaining that you are being "harassed," or, you're "in a hostile work environment," you aren't protected against retaliation. While harassment due to race, age, sex, national origin, religion, disability, or another legally-protected category is illegal, just plain "harassment" is not. So reporting it that way doesn't protect you against retaliation. When I ask why people didn't report that they were being treated differently than coworkers of a different race, sex, etc. they usually say something like, "I didn't want to go there." Well, if you'd gone there, firing you for your complaint would have been illegal. But firing you for saying you were harassed or bullied: not illegal.

Appropriate remedies may be to discipline or warn the harasser, to move the harasser, under some circumstances to move the victim, to do training, or in extreme cases, to terminate the harasser. But they don’t have to take any action at all. They only have a duty to maintain a safe workplace. You might still have to work with the harasser. Don't say you refuse to work with the harasser. You might be fired for refusing to work. If you return and are retaliated against or continue to be harassed, report it again.  If the employer allows retaliation or continued harassment, that is the time to get an attorney involved.

5. First Amendment In Private Workplaces

Only government employees have free speech protections, and those are very limited. Otherwise, you can be fired in most states for your speech (including political speech) in the workplace or outside the workplace. You can't be fired for speaking on behalf of coworkers in order to improve work conditions or for objecting to something illegal, but be very careful to make sure you're protected before you speak out.

If you're complaining about working conditions, reporting discrimination, objecting to not being paid overtime, or reporting illegal activity, you are likely legally protected in every state. 

In some states, employee speech about politics is protected. In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people." California, Colorado, New York, North Dakota and Louisiana say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. Here in Broward County, it's illegal to fire employees based upon political affiliation. If you work for government, there's the good old First Amendment to protect you. Plus, the Civil Service Reform Act of 1978 prohibits political affiliation/activity discrimination against federal employees. 

Speech about religion, women’s (or men’s) rights, and unionization is almost always protected.

Otherwise, you don't have free speech rights at work. Be very sure you have legal protection before speaking out.

6. Privacy At Work

Your boss can read your work e-mails and monitor your Internet usage at work. If your employer is going to listen into or record phone calls, there are some legal restrictions. You also have privacy rights in your medical information. There is no federal law protecting your social security number, but California, Texas and New York do offer limited protection against employers displaying your number.

The Electronic Communications Privacy Act of 1986 specifically says your company can't intercept your emails. The problem is, it has exceptions for consent. That means if your company has a policy on email interception or had you sign an agreement, a handbook, or anything else they managed to slip in front of you agreeing that email at work belongs to them, they skate. The law also says it's legal to monitor your email if the company is the email provider or if they monitor your email in the ordinary course of business, such as for customer service.

In other words, there are so many loopholes that your company probably fits into one. Until the courts say otherwise or Congress tightens this law, it likely doesn't help you.

Some states have a tort called "intrusion on seclusion" or "invasion of privacy." There are some protections against highly offensive conduct that's intrusive. The problem is, you probably won't be able to prove you had any expectation of privacy in your emails or other activities at work.

7. Right To Work

I hear all the time, "But this is a right to work state!" Usually while I'm reviewing a non-compete agreement. Right to work doesn't mean your employer can't restrict your ability to work for competitors after you leave. What it means is they can't make you join a union in order to work there. Some states, but not all, are right to work states. If your supervisor tells you that signing a non-compete agreement is meaningless or that it won't be enforced, they are lying to you.

8. Retaliation

There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or the fact that your boss is a jerk. If you do something that puts you in a legally protected category, you may be protected from retaliation. Examples would be objecting to discrimination, making a worker's comp claim, or taking Family and Medical Leave. If you're reporting something illegal the company is doing, you may be a protected whistleblower, but you'd better research the specific whistleblower laws that apply, because there are many hoops to jump through on some whistleblower cases.

If you complained about working conditions on behalf of yourself and coworkers, you may be protected against retaliation under the The National Labor Relations Act (NLRA), which protects employees who engage in concerted activity to improve working conditions.

For more about when retaliation may be illegal, check out my post on that topic.

9. Discrimination Because Your Boss Doesn't Like You

If your boss is discriminating against you for being you, that isn't illegal. Favoritism, nepotism, and being obnoxious are generally not illegal. Discrimination based on age, pregnancy, race, sex, religion, national origin, disability, color and genetic information are illegal. In some states, other categories such as sexual orientation, gender identity, marital status, and being a domestic violence victim are protected.

10. Suing the Boss

As much as it may be satisfying to sue your ex-boss personally, you probably can't. Federal and many state discrimination laws, Family and Medical Leave Act (in some states the courts disagree on this), and most other employment laws simply don't allow it. One major exception is wage and hour violations. Some state discrimination laws do hold supervisors liable for violations. But what's the point? Unless they're rich, you probably won't be able to collect anyhow.
Well that's wrong. What can I do about it?

Since most people think these laws exist, maybe it's probably high time for them to actually be passed. E-mail your congressperson and state representative now and complain if you don't like the fact that you're not protected. Here's how to find out how to contact your representative in Congress:
https://www.commoncause.org/find-your-representative

Here's a website with contact information for elected officials at the state and federal level:
http://www.usa.gov/Contact/Elected.shtml

You do have rights. Among them is the right to vote. If you don't like the law, exercise it and tell your representatives you demand some legal protections. In the meantime, don't get yourself fired by getting your legal advice from television. When in doubt, contact an employment lawyer in your state about your legal rights at work.

New EEOC Miami Policy: No Opportunity For Employees To Respond

In the bad old days, after an employee filed a Charge of Discrimination, employers would file a position statement and then one of two things happened: either the investigator would read a summary of the position statement quickly over the phone, or the investigator would write up a summary of the position statement. Then the employee would have 10 days to respond.

I say the bad old days, because this process really didn't give the employee a full opportunity to understand the employer's response or fully respond.

That all changed when EEOC implemented new Position Statement Procedures on January 1, 2016, entitling employees to a copy of the position statement if they request it. They also gave employees 20 days to respond to the position statement once received. This was way better, because employees had a full opportunity to read and understand what their employer was saying, and then fully respond to and rebut the position statement.

Even at its worst, EEOC gave employees at least some opportunity to respond. At its best, it gave employees a truly full and fair chance to respond.

But not anymore. I have had several cases recently where EEOC got the position statement and then dismissed the charge without giving the employee any chance to respond at all or even tell them they had received it.

When I asked EEOC's General Counsel to look into this, he referred me to the Director, who did not respond to my query at all. When I followed up because it happened again, the Director decided to insult me personally and tell me to take it up with NELA (the National Employment Lawyers Association) and Congress. So I think I will.

I have already directed my concerns about this utter lack of due process for employees to NELA. If you think this new process is terrible and doesn't comply with EEOC's mission to conduct a full investigation of charges of discrimination, contact your member of Congress and tell them you think EEOC should allow employees an opportunity to respond to employer's position statements so that they may conduct a full investigation.

By the way, this isn't the only anti-employee activity EEOC has engaged in since the change in presidential administrations. They have also engaged in dismissing cases immediately upon filing without any investigation (I've seen this happen personally), and I have heard multiple stories of them telling people they don't have a case and refusing to even take their charge (this is particularly awful because filing with EEOC is a prerequisite to filing a lawsuit, and employees have a very short time period to file).

People come to EEOC because they need help, because they think their employer engaged in unlawful discrimination. They also come to EEOC because they are legally required to do so if they even want to think about filing a lawsuit. So why has EEOC suddenly decided that its mission is to only help employers and not employees? Has EEOC been given a new mission to try to discourage or prevent employees from exercising their legal rights?

I think some more investigation is warranted.

Climate Change Denial To Be New Protected #Emplaw Category?

Yes, I've been absent for a bit. I was caught up in an arbitration (results unknown at this point) so had a good excuse. Anyhow, I saw this tidbit and had to share it. A Maine lawmaker has proposed a bill that would make an employee's opinions about climate change a legally protected category.

To his credit (or maybe he just didn't think it through), although the stated purpose of the bill is to protect climate change deniers, the protection goes both ways. If passed, the bill would also prevent conservative employers from firing employees who express a belief that climate change is real.

“An Act To Protect Political Speech and Prevent Climate Change Policy Profiling” was filed to counter a racketeering lawsuit by several states' attorney generals against Exxon relating to misleading the public and investors about climate change. 

The bill summary says:

The bill specifically prohibits the attorney general from investigating, joining an investigation initiated by another state or the federal government or prosecuting any person based on that person’s protected political speech. It also prohibits the attorney general from using the attorney general’s prosecutorial power to favor or disfavor protected political speech.

The bill also prohibits the state from favoring or disfavoring any person based on the person’s climate change policy preferences with regard to grants, contracts or employment.

I wonder how the state's chambers of commerce and business lobbyists will react to adding yet another protected category to the state's anti-discrimination laws (since it only applies to the state and not private employers, they may not care). Will climate change beliefs end up as another legally-protected category? If so, what's next? Russian hacking denial? Sincerely held belief in every single thing Fox news says? Stay tuned.

Noose In Workplace Doesn't Equal Discrimination, Says Court

People look at me like I'm crazy when I tell them that there are multiple cases saying a noose at work does not equal actionable race discrimination. Well, here's another one. This case was shocking even to me because coworkers testified that there had been multiple instances of nooses hung in this workplace. Plus, the employee claimed other instances of being treated differently than non-black employees.

Yet, in this case the 7th Circuit found that the employer did enough by reporting the incident to the police and leaving the rest to them. Here's what the court said:

Employers are strictly liable for supervisor harassment, Williams, 361 F.3d at 1029, but when a plaintiff claims that co-workers are responsible for the harassment, “he must show that his employer has ‘been negligent either in discovering or remedying the harassment,’” id., quoting Mason v. Southern Illinois University, 233 F.3d 1036, 1043 (7th Cir. 2000). There is no evidence that a supervisor was involved in leaving the noose, so Cole must instead present evidence allowing a reasonable jury to find that the university was negligent—which means in this context that it failed to take “prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring,” Erie Foods, 576 F.3d at 636, quoting Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1048 (7th Cir. 2000). A prompt investigation is the first step toward a reasonable corrective action. See Erie Foods, 576 F.3d at 636, citing Lapka, 517 F.3d at 984.  

The undisputed facts here show that once Cole notified Richards of the discovery of the noose, she spoke to him about it (albeit insensitively, we must assume) and delivered her own notes on the incident to the university 16 No. 15-2305 police. She also reported the incident to Nicklas, then vice president of public safety and community relations, as well as Perez and Daurer. She did nothing more after that, but in these circumstances it was reasonable for the administration, having involved the university police, to leave the investigation to them.

The same would apply to a single instance of sexual grabbing, a single racial or other offensive slur, or other coworker harassment.

Bottom line is this: a single incident with a coworker, no matter how serious, is rarely going to equal a lawsuit against your employer. You have to report it under the company's harassment policy and give them a chance to correct the situation. They don't have to fire the person or take any specific action. They only have to assure it won't happen again. They don't have to tell you what action they took. And you can't just refuse to come back to work.

Not my rule. Don't blame me when I tell you that this is what the courts are saying. Talk to your legislators about changing the law. Better yet, vote well on Tuesday.

Can You Be Fired For Your Facebook Posts? Yes (With Exceptions)

Do I really have to tell you to watch what you say on social media? Apparently I really do because I run into people all too often who were fired for inappropriate postings, emails, texts, or other comments. My best advice is this: don't put anything in writing that you don’t want posted on the front page of the company newsletter.

Examples of social media firings I've heard of that stand out are posting cruise pictures while on FMLA leave (doh!), posting a foul curse-laden rant about the company (probably legally protected), posting a photo of a nude museum statue (a coworker complained of sexual harassment even though they weren’t FB friends), and posting pictures of an office party gone wild (with some resulting retaliation by a boss captured on film). Basically, I’d say use your judgment and think twice, then think again before you post, whether pictures or just your thoughts. If you don’t think it would go over well on the company newsletter front page, don’t post it.

That being said, although HR does get involved in employee social media posts, 90% of the time it’s none of their business. And the NLRB would agree with me to the extent that employees have the right to gripe about and discuss working conditions. However, if the comments are racist, sexist or otherwise demonstrate that you are inclined toward unlawful discrimination or harassment, then I’d say it depends on the situation. You might be someone HR would want to give extra scrutiny to regarding your workplace behavior. 

But if you posted, say, a Nazi symbol on your Instagram but acted respectful and considerate of coworkers at all time, then I’d go back to my position that it’s none of HR’s business. On the other hand, posting a Nazi symbol, sexist comments or other evidence of a bias means that, if HR is watching or finds out about it, they’re on notice of the employee’s propensity to discriminate. If you do it at work, then the company could be strictly liable. So it’s a balancing act. You probably want to avoid being on that HR tightrope by watching what you post.

Most times it’s better for HR not to know what people are posting unless it somehow becomes disruptive at work. If HR is checking employee social media, they may accidentally find out about your disability, pregnancy, sexual orientation or other protected status and subject the company to potential discrimination claims.

If HR is going to scrutinize social media, personal emails written on work devices or other things that employees may think are none of their business, then HR should make a written policy and put people on notice. Otherwise, it will become a morale issue.

Some states have laws protecting employees for being fired for legal off-duty activities. Those laws may protect employees who post on their own time. 

For political posts, some states have laws that may help. For instance, in Washington State, it's illegal to retaliate against employees for failing to support a candidate, ballot position or political party.
California, Colorado, New York, North Dakota and Louisiana, say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people." Here in Broward County, it's illegal to fire employees based upon political affiliation.

So you do have some legal protection for some social media posts. However, use caution, especially during political season.