My 2018 Predictions

Okay, okay. So I've been promising these for awhile. It has taken me a bit to wrap my head around things that have happened so far since the presidential election. The good news is that the GOP remains the party that couldn't shoot straight (no pun intended). So far, little has been done against employees on the legislative front. It's mostly been done by executive order.

So what can we expect for the rest of 2018? Here are my predictions:

Sexual harassment: Despite all the brouhaha on #MeToo and sexual harassment, no new legislation will pass and we'll see some judicial and jury decisions penalizing sexual harassment victims. There will be backlash, and lots of it.

Agcncy paralysis: With cuts to EEOC, DOJ and NLRB, these agencies will develop backlogs and go into paralysis. Employees can expect little help from the feds this year. The one hopeful thing I see is that EEOC mediations are still going strong. The EEOC mediators, at least down here, are some of the best I've ever seen, government or private. We will still see cases resolved in EEOC mediations unless the mediation program is cut too.

Guns at work: Thanks to high school students down here, we may start to see states revisiting those idiotic guns at work laws that have been all the rage. On the other hand, the orange one is pressing to arm teachers in classrooms. What could possibly go wrong? I think we will actually see some baby steps on common sense gun control for the first time in this country in a long time. It will take awhile, probably years, but there will probably ultimately be a drop in workplace shootings if these laws pass.

Immigration raids: We've already started to see employers being raided to round up illegal immigrants and arrest the bosses for hiring them. We're also seeing traffic stops to round up immigrants. That will continue. Employers  and employees beware.

Antitrust: The Department of Justice has announced it will start cracking down on no-poach agreements between employers. That's a ray of sunshine in what will be an awful year for employees. I would caution employers who threaten to sue competitors for hiring former employees, then quietly settle with a no-poach agreement. The government will come after you as well as my colleagues and me for these illegal arrangements.

LGBT rights: The courts will continue to battle over whether or not Title VII'a sex discrimination prohibition covers sexual orientation. I don't think the Supremes will get to the issue this year, so we'll have a split among circuits on this. So far, the 2nd and 7th Circuits say it's covered. The 11th, which covers my home state of Florida, says no.

Marijuana crackdowns: I've been predicting for awhile that the feds will start cracking down on legal marijuana use. It's still illegal on the federal level, no matter what your state says. That handy-dandy card allowing you to buy will be a nice tool for the feds to use to claim probable cause to search your house. They'll probably go after growers and dispensaries first, but if people don't rise up and resist, they'll come after individuals next. I'm guessing the crackdown this year will be on the businesses, not on individuals.

Overall, this won't be a good year for employee rights. But then, you knew that already. Resistance is not futile.

My #1 Prediction For 2018: More Shootings. Here's How We Can Stop Them.

I promised that my next post would be my employment law predictions for 2018. Frankly, I've been putting it off because it's so depressing. However, in light of yesterday's shootings only a few miles from my home, at Marjory Stoneman Douglas High School, I had to weigh in. Not only will there be more school shootings this year, but there will be more workplace shootings. That is a 100% certainty.

I'm so tired of thoughts and prayers I could scream. Everyone I know has been personally affected by yesterday's shooting in some way. Thankfully, my daughters are safe. Many can't say the same. It's time to stand up and take action to stop this madness.

Adding to my rage and sadness, I actually knew Marjory Stoneman Douglas. She was a fellow Wellesley alum (obviously different years). I went with her to the White House when she was awarded the Medal of Freedom for her tireless work saving the Everglades. While we were there, I got to sit with her during the signing of the Brady Bill. She was so proud that Bill Clinton was doing something to help with gun control. She would be mortified that her name will now be used in the same breath as Columbine and Sandy Hook every time there is a new school shooting. I take personal umbrage that her memory is now tarnished with this horror.

But what can we do? Well, throwing up our hands hasn't worked. We are the only country this is happening in. The other countries that don't have these incidents have reasonable gun control. We have the most guns of any country. If having more guns makes you more safe, why are we the only place this is happening.

Here is my plan to slow down and substantially reduce the mass shootings in this country:

1. Assault Weapons Ban: From 1994 to 2004, we had an assault weapons ban. Mass shootings went down. When the GOP refused to renew it, they shot up. This is an easy and obvious partial solution to the problem.
2. Background Checks For Gun Shows: The Brady Bill is a law requiring background checks before gun purchases, but the GOP working with the NRA has managed to work in so many loopholes that it is almost worthless. According to the Brady Campaign, "experts estimate that 1 out of 5 gun sales occur in 'no questions asked' transactions that often take place over the Internet or at gun shows where, in most states, background checks are not required. This dangerous loophole puts thousands and thousands of guns in the hands of dangerous people like domestic abusers, felons and the dangerously mentally ill." There is a proposed law to close this loophole. It should be passed.
3. Include Social Media In Background Checks: We need to do background checks for guns as thorougly as employers do for potential employment. The kid who did this horrific shooting posted multiple threats to shoot people on social media. Part of every background check for potential gun ownership should include mandatory disclosure of all social media sites and handles. Failure to disclose should be a crime in itself.
4. Include Domest Violence Arrests in Background Checks: Domestic violence history is a red flag for potential mass shooters. If a potential gun buyer has such an arrest, even if not convicted, it should trigger a deeper background check including interviews with neighbors, employers, friends, and family, as well as the doctors who treated the victim. A conviction should result in automatic denial.
5. Provide Due Process for Gun Purchase Denials: If someone is denied a gun purchase based on a social media posting, let them appeal to an administrative judge or panel with no filing fee so that they can explain their side and try to get the decision reversed. That should allay concerns that people can be denied for unjust reasons.
6. Deny Guns To Those On The Terrorist Watch List: Seems obvious, but the GOP won't pass it. Same due process to appeal a denial as above so if someone is wrongly on the list, they can seek justice.
7. Buy Back Assault Weapons: How do we get the assault weapons off the streets? How about making owners an offer they can't refuse? Offer to buy them back at an outrageous price. How about $10,000 for your weapon? That would be a good investment of tax dollars. No, it wouldn't get them all off the streets, but I bet it would get a lot.
8. Confiscate Guns Of Criminals: If someone lies on their background check to obtain the gun, or is arrested for domestic violence or other violent crime, it should be instant probable cause to confiscate their registered weapons and search their homes, offices and vehicles for non-registered ones. The weapons should be held in custody until the person is found not guilty. In order to get the weapons back, a new background check should be done. If they are kept due to a conviction or failure of the background check, fair market value should be paid. There should be a right to a due process hearing on this as well.
9. Rise Up and Protest: I suggest a Million Parent March on Tallahassee as a start. The Florida legislature is in session, and much gun regulation has to be done on the state level. Let's start working state by state to get dangerous guns out of the hands of dangerous people.

These are my thoughts on the issue. Some of the above has been the subject of proposed legislation, some has not. Until we take action to address this problem, we will have more of our children and employees slaughtered. Thoughts and prayers are not enough.

New Bills In Florida That Will Impact #Employees If Passed

The Florida legislature is in session through May. They may or may not pass some legislation that will affect employees and employment law. Be afraid. Be very afraid. Here are some of the bills to watch:

SB 160 - Minimum Wage: Revising the formula for the adjusted state minimum wage, etc.  See HB 945. This is an attempt to slowly bring Florida's minimum wage up to a living wage by adjusting an extra $1 - $1.50 per year until 2021. Since Republicans hate the minimum wage to begin with, it won't pass. 

SCR 194:  The annual and inevitably failing attempt to ratify the Equal Rights Amendment. Sigh.

HB 319:  Discrimination in Labor and Employment: Creates "Helen Gordon Davis Fair Pay Protection Act." This bill, which won't pass. would add gender identity to the categories of illegal discrimination, prohibit pay and other discrimination based on sex and gender identity,  and prohibit employers from punishing employees for discussing and comparing wages and benefits. 

HB 443:  Verification of Employment Eligibility: Requires employers to use E-Verify system to verify employment eligibility; prohibits employer from knowingly or intentionally employing unauthorized alien. This bill really has more of an impact on employers, and criminalizes the hiring of illegal aliens. However, it will make it more difficult for anyone with an accent or foreign-sounding name to get a job if employers become skittish about possible jail time for a bad hiring decision. This one has a shot at getting passed as we continue anti-immigrant fever in this country, but I'm guessing the Chambers and business interests will freak out and oppose it. My prediction is it probably won't pass.

HB 623:  Prohibited Discrimination: Provides that sexual orientation & gender identity are impermissible grounds for discrimination, provides exception for constitutionally protected free exercise of religion.  Related bills are SB 666, HB 659, SB 742. Despite the fact that major corporations and business interests support this, and the fact that it will be good for Florida's tourism and economic interests, this has failed every time it has been attempted. It will fail again.

HB 1255:  Florida Commission on Human Relations. This bill would adjust quorum requirements for the Commission and would make clear that the statute of limitations for suing for discrimination is 4 years from the date of discrimination, which is the law now but is continually the subject of litigation. Mostly, it guts the discrimination provisions regarding private clubs. It could pass.

HB 7047: Would deregulate/change regulations regarding a huge list of professions, including labor organizations.

Guns in workplaces: There is a giant batch of pro-gun legislation pending that could well pass, and it will affect workplace safety and also employee rights to carry. These bills include the right to bring guns to colleges and universities, passenger terminals of airports, public meetings, basically anywhere, career centers,  athletic events of schools and colleges,  the Florida legislature (okay, this would serve them right). Then there's SB 140 and SB 646 that would make Florida an open carry state. If business organizations aren't freaking out and screaming bloody murder, they should be. Can you imagine what will happen if a bunch of Floridians are running around with guns in all these places? Mayhem will ensue. And then there's the one that is the voice in the wilderness that would increase penalties for carrying weapons into schools and school events. It won't pass. Neither will the one adding public theaters and performing arts centers to the list of places you can't carry weapons.

Medical marijuana: Of the many bills relating to marijuana use, not one would protect employees from being fired for using prescribed marijuana, even the low THC kind. For shame.

SB 1208: Would add intentional touching in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering such areas to the crime of sexual battery, which could give sexual harassment victims more ammunition. It's by a Democrat so it probably won't pass.

SB 1148: Unemployment compensation. Would provide for an alternate base period for those currently being screwed out of unemployment benefits for arbitrary calendar reasons, would punish employers who refuse to give wage/employment info (which happens all the time now and delays unemployment benefits by weeks or months) and would add to the reasons an employee can resign and still get benefits. There is no way this will pass. Florida has done everything it can to screw people out of their unemployment benefits and will continue to do so.

HB 575: Threats to kill or do bodily harm. This one will affect many employees. It makes it a felony to post on the Internet or in social media, as well as email, etc. any threat to kill or do bodily harm. This means anyone who posts, "I could just kill my boss for what happened today," or "I could just strangle my coworker," whether or not there was any intent to do the harm and whether or not it was just venting, could face felony charges. This bill could be crazy overbroad and could result in lots of employees ending up in handcuffs. Right now, the threat has to be made to the actual person. Now, if anyone else sees the threat you can be prosecuted.

HB 561: Providing for a veteran's preference tax credit, which may help veterans get employment.

HB 31: Would "ban the box" and prohibit employers from asking about arrests/convictions and from refusing to interview based on criminal arrests and convictions. They can still do background checks once a conditional offer of employment is made. It won't pass.

SB 126: Would loosen the state's anti-nepotism laws. Somebody has a relative who needs a job. Could it be somebody who also wants to turn the state into the wild west? Could be.

HB 11: Would make it way easier to decertify labor organizations/labor unions. It will probably pass.

The good news is there are no bathroom bills this year. Will the legislature do anything to help employees this year? Not likely. I'll let you know if they do.

Don’t Make These 10 Easily Avoidable Mistakes That Can Get You Fired

One of my greatest frustrations as an employee-side employment lawyer is that many people come to me after being fired because they made mistakes they could have easily avoided. Don’t lose your job over a stupid mistake. In raising children, my husband and I periodically note, “Things we shouldn’t have to say, but apparently do.” We’ve put, “Don’t eat the snail you found on the porch,” “Don’t cut a chunk out of your sister’s hair,” “Don’t put the cat in the clothes hamper,” and “Don’t write on your feet” in this category. (I understand silly product warnings more clearly since I’ve had kids).

Since I’ve seen these situations over and over again, even though they should be obvious, clearly some things don’t go without saying, even to working adults.

Here are 10 things you should not (emphasize, NOT) do if you don’t want to be fired:

1. Cursing: I’ve met dozens of employees who were fired over using the f-bomb or other curse words at work. Don’t assume that, just because supervisors curse like sailors, you can get away with having a potty mouth. Avoid curse words at work, especially with supervisors and customers.

2. Arguments With Customers: The customer is always right. If you have a customer who is being rude or abusive, get a supervisor involved. Don’t argue, curse, yell or be abusive to any customer.

3. Arguments With Supervisors: No, you can’t call your supervisor stupid or unprofessional and expect not to be fired. You can’t curse, threaten or throw things at your supervisor. Did I really have to say this? Apparently I did.

4. No-Show: If you’re sick, going to be late, or need medical leave, follow the company’s policy on calling it in. Do it within the required time and call or contact the person you’re required to call. Don’t just no-show. Don’t leave a message with a coworker. Don’t leave voice mail or email and assume it’s okay. Follow up and make sure the message was received if you can’t get the person on the phone the first time. If you’re so sick you can’t call, make sure a family member or friend calls. Check your schedule. Find out when you're supposed to return from a suspension or medical leave. 90% of life is showing up (loosely quoting Woody Allen).

5. Failing To Take Calls From A Supervisor: If your supervisor is calling you, especially if you’re out sick, don’t fail to pick up and answer. Why would anyone do this? I can’t even fathom, but it happens all the time. If your supervisor is interfering with your FMLA leave, take the call and then report them to HR. But take the call.

6. Failing To Respond To Email: If you have a company email address, check your messages. If a customer or a supervisor emails you, respond right away. Don’t let them pile up and fail to respond.

7. Failing To Respond To Voice Mail: Same as email, don’t let your voice mailbox fill up. Check your messages regularly and respond.

8. Guns At Work: Yes, Florida has a take-your-guns-to-work law. So do other states. The law says you can have a legally-permitted concealed weapon locked in your vehicle. That doesn’t mean you can take your gun onto work premises. Lock it up before you leave the house. Better yet, don’t take it. Employers are still squirrelly about guns, and I don’t particularly blame them. The law has lots of hoops and limitations. Why risk it?

9. Moonlighting: Many employers consider getting a second job (or getting a second job with a customer or competitor) to be a conflict of interest. Make sure you review the company’s policies carefully before accepting a second job.

10. Not Taking Responsibility: You have a responsibility to take care of your own stuff. That means knowing the rules, keeping track of your hours, calling in when required, and finding out when you’re expected to return from a suspension or medical leave. You are responsible for making sure you’ve provided any medical documentation needed, filled out FMLA forms and jumped through the employer’s hoops in any situation. You are responsible for understand how you are being paid. That means understanding any hourly rate, commission structure, salary, draw, or other pay plan. I can’t tell you how many people I encounter who have no idea how much they are owed or how they were being paid. That’s completely irresponsible.

I can probably think up dozens more after 27 years of practice, but these are the ones that come to mind as frequent problems. Don’t make my colleagues or me shake my head and ask, “What were you thinking?” Be responsible. Be an adult. This is your life we’re talking about. It’s important.

For more on easily avoidable mistakes, take a look at my article 10 Workplace Rights You Think You Have – But Don’t.

Debate Questions For Joe Biden From An Employment Attorney

This is part of the continuing series of debate questions being posted by employee- and management-side employment lawyers. These are my questions for Vice President Joe Biden.

Your opponents have supported efforts to roll back union rights and the strength of unions. You said this to the AFL-CIO: "We don't see the value of collective bargaining, we see the absolute positive necessity of collective bargaining. Let's get something straight: The only people who have the capacity -- organizational capacity and muscle -- to keep, as they say, the barbarians from the gate, is organized labor. And make no mistake about it, the guys on the other team get it. They know if they cripple labor, the gate is open, man. The gate is wide open. And we know that too." Why do you think it's important to have strong labor unions in America and what do you think your opponents propose that will harm working Americans?

Then I'd ask:

You said this about your opponents on Labor Day: "Ladies and gentlemen, you, organized labor, are one of the reasons why this country is coming back. Folks, let me make something clear and say it to the press: America is better off today than they left us when they left." How are working Americans better off than they were under George W. Bush?

I might want to know this (from all the candidates, really):

More and more states are passing laws to allow employees to bring their guns to work. They can't be fired for keeping weapons in their vehicles or for telling coworkers they've done so. What kind of legislation, if any, do you think we should have in this country to protect unarmed workers from coworkers who "go postal"?

I'd also want to ask:

President Obama signed the "VOW to Hire Heroes Act" into law on November 21, 2011. The Returning Heroes Tax Credit provides businesses that hire unemployed veterans a maximum credit of $5,600 per veteran, and the Wounded Warriors Tax Credit offers businesses that hire veterans with service-connected disabilities a maximum credit of $9,600 per veteran. This law also fixed a loophole in the law to make sure it is illegal to harass service members at work due to their military service. Why has your administration thought it was important to help veterans and military members get back to work and stay at work?