11th Circuit Stops Florida's "Stop Woke" Law Based on 1st Amendment

I know. I know. I keep saying there's no such thing as free speech at work. But while you workers don't have First Amendment protection in private workplaces, private employers do. Because corporations are "people" too. The distinction: the First Amendment prohibits restrictions on speech by government, not by individuals or corporations.

Confused yet? Well, I'm here specifically to discuss Florida's "Stop Woke" law* that said employers couldn't have trainings about not engaging in racism and discrimination in the workplace. The 11th Circuit just held that "Stop Woke" is a clearly illegal restriction on corporate free speech.

Here are some key excerpts from the opinion:

The State of Florida seeks to bar employers from holding mandatory meetings for their employees if those meetings endorse viewpoints the state finds offensive.  But meetings on those same topics are allowed if speakers endorse viewpoints the state agrees with, or at least does not object to.  This law, as Florida concedes, draws its distinctions based on viewpoint—the most pernicious of dividing lines under the First Amendment.  But the state insists that ordinary First Amendment review does not apply because the law restricts conduct, not speech.

The Act says employers cannot subject “any individual, as a condition of employment,” to “training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels” a certain set of beliefs.  Id.  It goes on to list the rejected ideas, all of which relate to race, color, sex, or national origin

Discussion of these topics, however, is not completely barred—the law prohibits requiring attendance only for sessions endorsing them.  Id. § 760.10(8)(b).  Employers can still require employees to attend sessions that reject these ideas or present them in an “objective manner without endorsement of the concepts.” 

 By limiting its restrictions to a list of ideas designated as offensive, the Act targets speech based on its content.  And by barring only speech that endorses any of those ideas, it penalizes certain viewpoints—the greatest First Amendment sin.  Florida concedes as much, even admitting that the Act rejects certain viewpoints. 

Florida has no compelling interest in creating a per se rule that some speech, regardless of its context or the effect it has on the listener, is offensive and discriminatory.  “It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” 

No matter how hard Florida tries to get around it, “viewpoint discrimination is inherent in the design and structure of this Act.”  NIFLA, 585 U.S. at 779 (Kennedy, J., concurring).  Given our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” the answer is clear: Florida’s law exceeds the bounds of the First Amendment.  New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).  No matter how controversial the ideas, allowing the government to set the terms of the debate is poison, not antidote.

* I've written about this law before, here and here.

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.

Can I Be Fired For Attending the Capitol Protest?

 I'm hearing a lot of muttering about free speech rights relating to the Capitol protest/attempted coup last week. A number of people have been fired by employers after storming the Capitol, and they are complaining about their rights being violated. 

So this raises the question: Can I be fired for attending the Capitol protest?

Short answer is yes, with some limited exceptions.

But if your question is: Can I be fired for storming the Capitol?

The answer is yes, yes, a thousand times yes.

The difference is attending a protest versus engaging in clearly illegal activity. Those that stormed the Capitol are guilty of crimes ranging from vandalism to burglary to sedition to felony murder, among other things, so emloyers can definitely fire you for committing a crime. Extra bonus firing if you wore company insignia while committing the crime.

For protesters who had the sense to leave when things got crazy, there are some possible protections. 

In some states, employers' threats to terminate employees based on politics may be illegal. Some states, like California, Colorado, New York, North Dakota and Louisiana, say it's illegal to retaliate against an employee for their legal off-duty participation in politics or political campaigns. California, Colorado and North Dakota also protect employees from being fired for legal off-duty activities, political or not. 

Illegal activities aren't protected at all, anywhere.

In general, remember that the First Amendment doesn't protect you at all in a non-government workplace, and government workers have little protection in such situations.

If your protesting landed you on the do-not-fly list and your job requires travel, that's a legitimate reason for employers to fire you even if there is some legal protection in your state otherwise.

In sum, all but a few of the protesters can be fired for attending last week's protest, and anyone who raided the Capitol can almost certainly be fired.

Once the insurgents are convicted, most states allow employers to discriminate against those with criminal records, so that's an extra bonus for them. 
 

Roseanne, the NFL, and Employee Free Speech at Work

There are two big stories in the headlines involving employee speech and the consequences thereof. If you haven't heard of both, welcome back from the coma. The most recent was Roseanne Barr's racist tweet rant, which resulted in the cancellation of her number 1 rated TV show, Roseanne. Then there has been the ongoing saga of NFL players kneeling during the national anthem in protest over the extreme number of police killings of black people. The NFL recently decided to impose penalties on teams with players who kneel, but will allow them to stay in the locker room.

So, let's first address the elephant in the room. What about free speech? I have to keep saying this, and I shouldn't: there is no free speech in the workplace unless you work for government. Even working for government, your free speech is limited.

Do the NFL players and Roseanne have any rights in this situation? Maybe.

Roseanne is a well-known star. She has a contract with the network. If she had a good agent or lawyer, she likely has a clause protecting her in this situation. If I were negotiating, I might have demanded that the network agree not to cancel the show if ratings were over a certain number. Or that the network guarantee a certain number of shows. I don't know what her contract says. However, it may also have a clause allowing the network to cancel if the stars engaged in behavior that they deemed damaging to the network. Depending on the language of such a clause, a racist rant may well mean the network was within its rights.

Had there been no contract, the network could cancel for any reason or no reason at all, because employees in every state but Montana are at-will unless there is a contract saying otherwise.

The other issue is whether the network should have canceled the show. On that issue, I have to come down in the yes column. They are now on notice of her propensity to engage in race discrimination. Now that they are on notice, if they allow her to continue and she discriminates against cast or crew, they could be liable for punitive damages. I don't see that they had any choice here. There is also the issue of sponsors. If sponsors backed out in droves, that would similarly justify the cancellation.

Now, on to the NFL. The players have a union. This new requirement that they not kneel may well violate the NFL's obligation to collectively bargain regarding terms and conditions of employment. I suspect we'll hear more from the union on that issue.

Should the NFL have done this? On the one hand, some fans were freaking out about the kneeling. But they still keep concession stands open so nobody is freaking out about buying hot dogs during the anthem. These are players quietly and respectfully protesting discrimination. There is nothing about the protest that shows any propensity to engage in discrimination like Roseanne. I, personally, would not organize a protest in a way that allowed the opposition to question my patriotism, but this is how they chose to protest, and I think they should be allowed to do so as long as they do so respectfully, as they have done. I understand the NFL's wanting to end the controversy, but I think they just managed to step it up instead.

Overall, the lesson to those of us who aren't multi-millionaires with big contracts is that there is no free speech in the workplace in America.

Two First Amendment Rights, Only One Protected: Last Man Standing (Sort Of) Gets It Right

One of my guilty pleasures is watching Tim Allen's show Last Man Standing. Guilty because, unlike the very apolitical Home Improvement, Tim Allen uses his new vehicle to take some slaps at President Obama and liberals in general. In a recent episode, Three Sundays, they addressed two rights protected by the First Amendment, how these rights play out in the workplace, and sorta kinda got them right. However, they didn't explain why one right was protected and one wasn't so I will.

Free Speech: The first issue was the right to free expression. Ryan, the despised-because-he's-a-liberal father of Mike's (the Allen character's) grandchild, has a blog where he posts pictures and criticizes situations he finds on the road (where he's a trucker for a beer company), such as environmental issues and encroachments on Native American land. His company takes umbrage and demands he take down the blog. The problem? He's wearing his uniform in the pictures. Mike tells him it's the right choice to take down the photos. Ryan asks, "I thought you supported my right to free speech, Mike?" Mike responds, "I do, but I also support your company's right to tell you to stuff it."

Mike got it right. As I've said before, the First Amendment doesn't protect your right to free speech at work. People freaked out when I wrote about this in the context of Duck Dynasty. Fewer cared about Ozzie Guillen when he commented about his love for Fidel. Your employer can fire you if they don't like your speech at work. The one exception that's notable is that they can't fire you if you aren't a supervisor and are talking to coworkers or to management on behalf of coworkers about working conditions. Had Ryan's blog been about working conditions then it may well have been protected.

Freedom of Religion: Kyle, the not-so-bright coworker and boyfriend of one of Mike's daughters, is being forced to work on Sundays and he wants time off to go to church. He asks Mike: "Do I have an amendment for my freedom of religion?" Mike says, "It's the same one.You can practice whatever religion you want. Nobody can tell you any different." Kyle then goes on to insist that his boss give him time off for church on Sundays. Here's where the show missed the boat. Kyle's right to have time off isn't from the First Amendment. It's from Title VII, the anti-discrimination law so hated by conservatives like Allen. Among other things, that law requires employers to grant reasonable accommodations for religious reasons and religious practices.

So, while you have rights under the First Amendment, those right aren't protected at work. However, federal and state discrimination laws protect you from religious discrimination. Will we hear Allen making any pro-Title VII comments on the show? Doubtful. And that's probably why he didn't mention it on the show. Title VII protects everyone - black, white, Hispanic, Protestant, Muslim, Atheist, Cuban, American, male, female -from discrimination at work. It probably protects you. It even protects Tim Allen in his workplace, real or fictional.

Vikings Football Player Speaks Up For Gay Marriage, Is Fired: Can He Sue? Maybe

Chris Kluwe is a punter for the NFL. He used to play for the Minnesota Vikings. That is, until he started speaking up in favor of marriage equality. He got permission from the team to do some ads for the cause, but things changed when he wrote and published a letter to a Maryland state official defending a Ravens football player's right to free speech on the same subject. After that, his coach asked him to stop. He didn't.

His coach began to make negative comments about gays repeatedly in Kluwe's presence that they hadn't made in all the years he had worked for them. He also made comments to the effect that Kluwe, "would wind up burning in hell with the gays, and that the only truth was Jesus Christ and the Bible"

He was singled out for harsh criticisms that others had not been subjected to. The comments got increasingly angry, such as: "We should round up all the gays, send them to an island, and then nuke it until it glows."

He was instructed to kick in such a way that it helped the team but made him look worse in the stats. Ultimately, he was replaced. His full statement about what he says happened is here. A story that has the team's response is here.  The team is now investigating and maybe they'll do something, maybe not. 

Let's assume everything he says is true. Does he have a remedy? Let's examine what possible claims he may raise:

• Free speech: This would be a non-starter. I've written about the fact that there's no free speech at work here, here, here and here. The First Amendment protects you against government action, not corporate action.
• Sexual orientation discrimination: Minnesota has a law against sexual orientation discrimination, but there's no law protecting speech in favor of marriage equality. If he were fired for objecting to sexual orientation discrimination within the team, then he would be protected against retaliation, but there's still no openly gay football player in the NFL. The law in Minnesota does protect against perceived sexual orientation discrimination, but I see no indication that the coach actually thought he was gay. If Minnesota has an association discrimination provision in the law, then maybe he can argue he was fired for associating with gays. My guess is he's out of luck on sexual orientation discrimination.
• Political activity: Minnesota has a law on the books making it a crime to retaliate against an employee because of that person's political activity. I think this one may be a winner. The question will be whether he has a remedy under this law because it makes violations a misdemeanor. Any Minnesota lawyers out there want to weigh in?
• Contract: He almost certainly has an employment contract and I know absolutely zero about football contracts. I'd guess they can dump a player pretty much at will, although there may be some hoops they have to jump through. Unless he can only be fired for cause, or the contract says he can't be fired for political activity or for discriminatory reasons, he may have little or no remedy there. Anyone know what's in his contract?
• Religious discrimination: If his coach actually told him he'd burn in hell, this would be the way I'd probably go with it. The coach has strong religious beliefs against gay marriage and Kluwe doesn't share those religious beliefs. In Florida, with no law protecting against political activity discrimination or sexual orientation discrimination, this might be the only way to go with a case like this one. I recently wrote about whether religious discrimination laws allow harassment of employees for various reasons, which you can read here.

Can he sue? I'd say maybe. He has one possible federal claim, one pretty good state law claim and one possible state law claim. I'm guessing we haven't heard the last of Mr. Kluwe, so we'll soon find out.

I said it to conservatives and now I'll say it to liberals: it's best to keep those controversial opinions to yourself at work and in public. If you have a boss who holds strong contrary views, or if you're likely to offend your employer's customers with your opinions, keep them to yourself and your friends (but not in social media). I guess it's a good thing I'm my own boss . . .

Still No Free Speech At Work: Response To Your Comments on Phil Robertson and Duck Dynasty

Wow! I had no idea so many of my readers loved Duck Dynasty. With almost 2000 comments, I can't possibly respond to them all. When I wrote last week that A&E was probably within its rights to suspend Phil Robertson for making racist (yes, it's racist to say blacks were better off under Jim Crow) and homophobic comments (and I didn't even know then about the sexist and disturbing comments he made about marrying 15-year-old girls), you had lots to say. Some of you talked about religious discrimination. Some wanted to know more about his contract with A&E. I'll talk about those issues in another article.

First I wanted to respond to the fact that even more of you still don't believe that the 1st Amendment doesn't protect you at work.

No First Amendment Protection For Employees? What A Dingbat!

Many of you chastised me for even suggesting such a thing:

• ihave1465fans The dingbat writer of this article diesn't seem to know that Rights in America belong to individuals, not to selected collectives. She is part of a major problem in the country where people seem all too eager to throw their rights away !

For more on the reader comments (I included some of the highlights) and my response, read my article at AOL Jobs.

Just Because Duck Dynasty's Phil Robertson Survived Doesn't Mean You Have Free Speech At Work

Unless you've been out of the country for the holidays, you probably heard about the brouhaha over Duck Dynasty patriarch Phil Robertson's anti-gay and racist comments. He was interviewed by GQ and made comments that got him suspended indefinitely by A&E Television Networks, LLC. That caused an uproar, with petitions from Robertson supporters flying and claims that A&E violated his First Amendment rights. He was then reinstated.

Does this mean that you should let loose with your beliefs about race, women, gays, or religion at work or in your public social media? Heck no. You probably aren't bringing in millions of dollars of revenue to the company. You probably don't have thousands of supporters who will petition for you. You'll just be fired.

My latest article at AOL Jobs has gotten a huge number of angry comments from readers who swear I'm ignorant about the First Amendment and got this wrong. If you're a regular reader here, you know there's no right to free speech at work. You can refresh your memory by reading about Ozzie Guillen's run-in with free speech at work and 10 Workplace Rights You Think You Have - But Don't.  

If you want to read my AOL Jobs piece on Duck Dynasty (or just want to see the comments - over 1500 and climbing), the article is here.

Top Reasons Why Kick The Boss Is One of the Top Apps

My 13-year-old thought I’d want to know about a hot free app available for my iPhone: Kick the Boss. Knowing what I know about the current state of employment law, is it any wonder that an app allowing you to kick, punch, burn, stab, and flick your boss until he’s gone, and rewarding you with more powers each time you inflict pain on him is one of the most popular games in America?

No doubt about it: the hostility between worker and employer is growing by leaps and bounds. Employers consider employees disposable and treat them like the enemy. Employees no longer think of their jobs as the place they’ll work for life. They know that isn’t going to happen.

If you’re a boss who is surprised at this level of hostility, just think about what’s been going on. No wonder your employees want to kick you around in the virtual world. For employees, here are just some of the reasons why you may want to set your boss on virtual fire.

 Facebook passwords: Some companies are demanding Facebook passwords from applicants and employees. There’s no sense of any entitlement to privacy in the corporate world. They want to read your posts and even your private messages.  

Reading email: Companies read your emails if you access them at work. Some even use keylogging software to get your passwords and access your most intimate conversations. Use your work computer or work phone to check your messages? Forget privacy. Think front page of the company newsletter.  

Criminalization of employment: Employers are coming after employees and former employers with criminal charges, because ruining you financially just isn’t enough anymore. They want your freedom. It’s one thing if an employee stole or embezzled. But these new cases are meant to intimidate employees who leave and work for competitors. The Computer Fraud and Abuse Act and trade secrets theft are some of the ways employers are trying to criminalize employment law. If employers have their way, they’ll be able to toss you in jail if you quit. Give it another 10 years and maybe the’ll get their way.  

At-will firing: Recent cases have shown employees getting fired or disciplined after donating a kidney for their boss, because the employer didn’t like the color of employee shirts, because the employee expressed an unpopular opinion on their own time, and for teaching about discrimination. The fact that your employer can fire you because she woke up in a bad mood or got a terrible cup of coffee adds to the hostility you might be feeling about your work.  

Pensions and benefits: Employers are curtailing and playing with benefits. Pension plans get cut or eliminated; health insurance goes to the cheapest plan or is cut. When you’re fired, you lose your health insurance because we’re one of the only industrialized Western countries that ties health insurance to work.  

No free speech: You can be fired for criticizing your boss, complaining about ethics and unprofessionalism, reporting a coworker for embezzlement, and for saying anything your boss doesn’t like about politics or world affairs. Zip it if you want to keep your job.  

Unemployment discrimination: They can refuse to hire you in most states due to the fact that you’re unemployed. Quit? Good luck finding something out there.  

Credit discrimination: Lose your job and get bad credit as a result? Corporate America doesn’t want you anymore. They think if you’re poor you’ll steal from them. They don’t realize you might work harder if you really need the work.

I say go ahead and kick your boss, virtually, that is. It’s good to get out a little bit of frustration, and beats the heck out of going to jail because you took a real 2x4 up against his head. If you’re thinking about beating up the boss, please don’t.

If you’re so frustrated you are thinking about doing real violence, get the heck out of there. Start looking while you still have a job. The jerk isn’t worth your freedom.

As Ozzie Guillen Learned the Hard Way, There’s No Free Speech in Corporate America

The Miami Marlins suspended new Manager Ozzie Guillen for saying: “I love Fidel Castro,” and "I respect Fidel Castro. You know why? A lot of people have wanted to kill Fidel Castro for the last 60 years, but that mother-f***er is still here."

First it was reported as a suspension without pay, but it turns out it’s a suspension with pay. He had to apologize for his remarks. No question; his remarks offended most of the community his employer serves. While you may not think they were that bad, trust me: the Cuban community was offended. If you don’t follow Cuban politics, just imagine someone saying they admire the KKK, Hitler or Bin Laden and you’ll get the drift.

Did he mean to offend? Probably not. Were the company’s customers upset? Absolutely. Still, some folks expressed shock that an employer could punish an employee for espousing his opinion. “What about the First Amendment?” they cried.

I’ve said it in my book and I’ll say it again. There is no free speech in corporate America. The First Amendment protects us from government action, not the actions of private companies. That means you can be fired because your private employer doesn’t like what you said (or what you wore), with very few exceptions.

Mr. Guillen got off easy compared to Brooke Harris, who was fired from her job as a teacher in a charter school for teaching about the Trayvon Martin case. Why the difference? Guillen probably has a contract saying he can only be fired for cause. Martin probably has no contract to protect her, and her state, like every state in the union but Montana, is an at-will state, meaning she can be fired for any reason or no reason at all.

Not all speech is unprotected. Here are some circumstances where your speech might have some legal protection:

Concerted activity: If you get together with coworkers or take action on behalf of at least one other coworker (not just on your own behalf) to protest or try to change working conditions, you may be protected under the National Labor Relations Act (NLRA). NLRA says in Section 7: “Employees shall have the right to self-organization, . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” NLRA also makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Neither Mr. Guillen nor Ms. Harris fits here.

Objecting to discrimination: If you object to illegal discrimination based on race, sex, religion, national origin, disability, pregnancy, age, or some other protected status, you are protected against retaliation by Title VII, the federal law prohibiting discrimination. Ms. Harris might have fit into this category if she were objecting to discrimination by her employer, but it doesn’t apply to objecting to other types of discrimination.

Political affiliation: Some states, counties and cities have laws prohibiting discrimination based on political affiliation. Mr. Guillen’s remarks might have fit within this category if his local government or state had such a prohibition. Had he been in the county just north of Miami, Broward County, there is an ordinance prohibiting such discrimination. Would he have filed a complaint? Doubtful. He kept his job and lost no money.

Objecting to illegal activity: If you’re objecting to an illegal activity of your employer, you might be a protected whistleblower. That certainly doesn’t help either Mr. Guillen or Ms. Harris.

Activity outside work: Some states and localities prohibit employers for firing or disciplining employees for activities outside work. However, even those laws have exceptions for activity that affects the employer’s reputation or the ability of the employee to do their job. There’s little doubt that Guillen’s comments both reflected on the Marlins and affected Guillen’s ability to get his job done, as demonstrated by the multiple protests that occurred.

Contract: This is what probably saved Mr. Guillen. If you have a contract saying you can only be fired for cause, then check what is says constitutes “cause.” Offending 70% of the customer base may well be cause (but it might not). It all depends on how it was drafted. Best read up before you give any press interviews if you think you’re protected.

Before you spout off at work (or anywhere) about something your employer might deem offensive, remember how little protection you have.

Employers are watching more and more closely. They want your Facebook password. They watch what you post on Twitter. They read your email messages at work. They look at the websites you visit. Soon, they’ll be asking to read your diary. Heck, if it’s on your work computer, they’ve probably already read it. Will they start asking for an extra copy of your house key? I predict some employer will do this within the next couple of years.

Watch what you say, and especially what you email, text or post, even while you’re at home. If you’d be embarrassed to see it on the front page of the company newspaper, you probably shouldn’t put it on your Facebook page.

There’s no free speech in corporate America. Big employer is watching.

Occupy Your Workplace: Changes To Employment Laws That Would Make a Difference

Just like the Tea Party on the other side, the Occupy Wall Street movement is on the brink of having real political power. Everyone wants to know -- what do they want? What changes will they ask for? With unemployment still hovering at 9% and people scared they will lose their jobs for blinking wrong, America needs real changes to its employment laws. When I wrote my article, 10 Workplace Rights You Think You Have -- But Don't, many commenters were angry -- with me. They thought I must be wrong. I wasn't.

It's time workers started paying attention to the laws that protect them, and the laws that ought to. As a lawyer who has practiced employee-side employment law for over 25 years and who has seen how bad law can devastate hard-working Americans, here are some changes I'd suggest if I were advising the Occupy Wall Street movement.

Read more in The Huffington Post. I'd love to see your comments there.



Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!

Guest Blog Post on Social Media and Employment Law: Six Things You Need to Know

Whether you’re an occasional Facebooker, a Twitter fanatic, or a well-known blogger, you need to understand the risks you face every time you post or click at work and at home. If you think what you post is private, or that you can click without consequences, think again. If you make a mistake with your social media, it can cost you your job. I did a guest blog post this week on MonsterThinking (Monster.com's excellent blog on employment and career issues) where I talk about six things you need to know about social media and employment law before you post or click.

Check it out here.

I've added MonsterThinking.com to my blogroll too. It's an excellent source of information for employees on the latest issues affecting you at work. Keep checking it out - I know I will.

Top Ten Employment Laws You Think Exist – That Don’t

Everyone tells me they know their employee rights. Some are even dumb enough to tell their employers they know their rights. The problem is, most of you are getting your legal information from courtroom TV shows or coworkers who know less than you do. Before you mouth off about your rights, here are some laws that most employees think exist - that don't.

• Wrongful termination

If you live in Montana, your employer can only fire you for just cause. Otherwise, they can fire you for any reason or no reason at all. They don’t have to have a good reason. They don’t even have to give a reason in most states. Arizona has a law based on the Montana law, but they took the "just cause" (and some other pro-employee stuff)out of it.

• Right to your file

No federal law requires private employers to allow employees to inspect or copy their own personnel files. Some states require employers to allow you to look at your file. Fewer 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.

• 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 law 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 if your employer is big enough. Some states also offer protection for nursing moms taking breaks.

• Hostile environment/harassment

Hostile work environment is not illegal. Harassment is not illegal. Bullying is not illegal. Hostile work environment or harassment due to race, age, sex, religion, national origin, disability, color, taking Family and Medical Leave, whistleblowing, or some other legally-protected status is illegal.

• Free speech

Only government employees have free speech protections, and those are very limited. You can be fired for your speech in the workplace or outside the workplace if you work for a private employer. 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.

• Privacy

There is no law giving you privacy in your work emails or internet usage. If your employer is going to listen into or record phone calls, there are legal restrictions. You also have privacy rights in your medical information. There is no federal law protecting your social security number, but California and New York do offer limited protection against employers displaying your number.

• Right to work

Right to work doesn’t mean your employer can’t make you sign a non-compete agreement or 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 company tells you that signing a noncompete agreement is meaningless or that it won’t be enforced, they are lying to you.

• Retaliation

There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or jerkish behavior. Only if you do something that puts you in a legally protected category are you protected from retaliation. Examples would be objecting to discrimination, making a worker’s comp claim, or taking Family and Medical Leave.

• Discrimination

Discriminating against you for being you is never illegal. Favoritism, nepotism, being a jerk, are not illegal. Discrimination based on age, race, sex, religion, national origin, disability, color and genetic information are illegal.

• Individual liability

As much as it may give you joy to sue your 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 laws simply don’t allow it. The one 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 time for them to actually be passed. Email your congressperson and state representative now and complain if you don't like the fact that you're not protected. Here are some places to find out how to contact your representative in Congress:

http://www.contactingthecongress.org/

http://www.congress.org

Here's a website with contact information for elected officials at the state and federal level:

http://www.usa.gov/Contact/Elected.shtml

Why Do I Need An Employment Lawyer? Do I have A Case?

In general, there is no such thing as wrongful termination/discipline in most states if you don’t have a contract saying you can only be fired for cause. So why on earth would you ever need an employment lawyer? How do you figure out if you have a case?

Why Do I Need An Employment Lawyer?

There are some times in your employment that you may definitely need an attorney. Here are some reasons you might need a lawyer.

Deadlines: Employment laws are a morass of confusing deadlines, prerequisites to filing suit, and requirements you might miss if you try to do it yourself. If you’re thinking about filing suit, you probably want to speak to a lawyer.

Confusing claims: There are some employment laws on the books that you might not know about, so you might have a case you don’t know about. And there are some laws you think exist, that don’t. If you think you might have claims, if your termination doesn’t feel right or you think something has happened that’s illegal, you might want to run it past a lawyer.

Being taken seriously: Some employers don’t take you seriously unless you have representation.

Uncomfortable in confrontations: If you’re trying to negotiate your own employment agreement or severance package, many people don’t feel comfortable being in a confrontational situation or advocating for themselves. Sometimes it’s better to have an advocate.

When you absolutely, positively need a lawyer

If any of these happen to you, you should contact a lawyer immediately:

Your employer or former lawyer sues or threatens to sue you;

You’re being asked to sign an agreement that you don’t fully understand, especially if it’s a noncompete, confidentiality, arbitration, or employment agreement;

You’ve been accused of a crime (contact a criminal defense lawyer, not an employment lawyer, immediately).

When you might want a lawyer

If you think your employer or former employer has broken employment laws;

If you have been retaliated against for complaining about discrimination or something illegal the employer has done;

If you’re not being paid all the wages you’re owed;

If you think you’re misclassified as exempt from overtime or as an independent contractor.

When you probably don’t need a lawyer

To make a written complaint of discrimination to the human resources department, as long as you follow the policy;

To attend a disciplinary meeting (take good notes, don’t sign anything except a form acknowledging receipt of the discipline, and sign “as to receipt only, rebuttal to follow);

To sign documents you understand, like applications, insurance forms, and tax documents.

To file a union grievance if you’re a union member (use your union rep – they’re free).

Do I Have A Case?

Here is a checklist to help you figure out if you might have a case against your employer. It’s not exhaustive, since every state has different laws, but this will give you a start.

Cases involving termination, demotion, or suspension without pay

If you answer yes to any of these questions, you may have potential claims. You’ll want to contact an employment lawyer in your state to find out if you have a case if any of these occurred shortly before your termination, demotion, suspension without pay or other discipline.

_____ Did you make a worker’s compensation claim shortly before being fired?

_____ Had you recently objected to, refused to participate in, or reported illegal activity or discrimination by the company? (as opposed to something unethical or a violation of company policy)

_____ Had you recently had surgery, revealed the existence of a medical condition, genetic information or pregnancy?

_____ Has the employer made a false statement of fact (as opposed to opinion) about you to someone outside the company, such as a potential employer?

_____ Had you recently performed jury duty?

_____ Had you recently served in the military?

_____ Had you recently taken family or medical leave?

_____ Had you recently served as a witness in a lawsuit or provided testimony or evidence to EEOC?

_____ Had you recently engaged in activity for the benefit of co-workers with respect to terms and conditions of employment?

_____ Did your employer fail to pay you for all hours worked, or fail to pay overtime if you worked over 40 hours per week? Many times, employees are misclassified as exempt and will be owed back wages for up to 2 - 3 years.

Discrimination claims

It’s not illegal to discriminate against you for being you. If the discrimination or harassment fits in one of the categories below, you should contact an attorney or EEOC to find out more about your rights and your responsibility to report it before you make a claim.

___ Race ___ Sex ___ Sexual harassment ___ Religion ___ Ethnicity ____ Disability ____ Age___ Pregnancy ____ National origin ____ Color (same race) ___ Genetic information ____ Retaliation for objecting to discrimination

Ask yourself how you were treated differently than others of a different race, age, sex, national origin, disability, religion, sexual orientation, or color under the same circumstances. Some states, counties or municipalities have more categories, like marital status and sexual orientation. If you can’t point to someone else who was treated differently under the same circumstances, or to instances where you were singled out for different treatment than others, you may not be able to show discrimination.

Does the employer have 15 or more employees? If not, discrimination laws may well not apply. Some states, counties and municipalities have laws that apply to smaller employers.

Why Isn’t My Case On Your List?

Many people are quite certain that some employer actions are illegal, based on bad TV dramas and misconceptions. Here are some examples of things that aren’t illegal, even though you might assume they are:

• 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.

• Hostile environment/harassment

Hostile work environment is not illegal. General harassment is not illegal. Bullying is not illegal. Only hostile environment/harassment due to race, age, sex, disability, or another legally-protected status is illegal.

• Free speech
Only government employees have free speech protections, and those are very limited.

• Privacy
There is no law giving you privacy in your work emails or internet usage. If your employer is going to listen into or record phone calls, there are legal restrictions. You have some privacy rights in your medical information. There is no federal law protecting your social security number, but two states offer limited protection against employers displaying your number.

• Right to work

Right to work doesn’t mean your employer can’t make you sign a non-compete agreement or 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 company tells you that signing a non-compete agreement is meaningless or that it won’t be enforced, they are lying to you.

• Retaliation

There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, lack of professionalism, ethical violations, bullying, or jerkish behavior.

If you think you have claims to make against your employer or former employer, then the best course of action is to contact an employment lawyer in your state to discuss potential claims.