States With Pro-Employee Laws: Discrimination Against Unemployed

(Or, States That Don't Suck For Employees)

I have the sad duty of informing my clients pretty much daily just how bad Florida law is for employees. It's pretty depressing how few legal protections my home states offers employees. So I thought I'd periodically celebrate some states that actually have laws protecting employees. Today, I'm celebrating the states that have enacted laws protecting the unemployed from discrimination.

During the not-so-Great Recession, some help-wanted ads started popping up saying only those already employed need apply. While it had always been illegal to discriminate against the unemployed, going this blatant backfired on employers. Public and media outrage ensued and New Jersey became the first state to make it illegal to discriminate against the unemployed. 

New Jersey's law actually only makes it illegal for employers  to advertise that they'll only hired the employed, but doesn't make it illegal to refuse to hire the unemployed, and prospective employees can't sue for violations. Still, it's an improvement. At least the long-term unemployed don't have to see their plight in print when looking through the classifieds.

Oregon, DC and Chicago soon followed with similar legislation that prohibited advertising but not actual refusal to hire the unemployed. A number of states tried and failed to pass legislation prohibiting unemployment discrimination.

Along came New York, a city that never sleeps on worker rights, and passed a law not only prohibiting unemployment discrimination but allowing aggrieved applicants to file a complaint with the city's Commission on Human Rights or sue, including bringing a class action. Madison, WI has also passed a similar ordinance.

Not to be outdone, New Jersey legislators passed another bill, this one actually prohibiting using the fact of being unemployed in employment decisions, but Gov. Christie vetoed it. Federal legislation proposed to help protect the unemployed against discrimination failed.

Why should all taxpayers push to make unemployment discrimination illegal? Because we have a huge problem with long-term unemployment, and it is getting worse. If you've been unemployed 6 months or more, your chances of getting a job drop drastically. Who bears the brunt of this? Taxpayers. As these folks lose their homes, file for bankruptcy, and apply for public assistance, we're paying for this employer nonsense. 

Can anyone show me a single data point saying being unemployed has anything at all with a person's ability to do a job? How is this the unemployed person's fault? Why should we, as taxpayers, have to pay for hiring managers' wild hair idea carried over from their middle school days that a person is only worthwhile if someone else has them?

Kudos to the states and cities that have passed laws to help their citizens with this employer-created problem. Will my home state and other states that allow employers to trash their economies with this nonsense wake up?

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

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.

Donna’s Employment Law Predictions for 2012

I’m getting out my iPad’s magic 8-ball app and looking into the future. I see a big year for employment law issues in 2012. Here’s where I think we’ll see lots of litigation or legislation:

Military: With loads of returning military members, Congress will scramble to plug any new loopholes that keep military service people from being protected in their jobs. Look for lots of USERRA litigation when employers realize they don’t want to let the person who has been in the position go when Johnny comes marching home. Without a doubt.

Sexual harassment: Now that sexual harassment has become a hot-button political issue again, watch for attempts to weaken sexual harassment protections. Also watch the federal courts continue to erode what few protections employees have left. Will the Democrats have the will and the ability to stop sexual harassment from becoming legal? Very doubtful.

Retaliation: Retaliation has been hot, hot, hot, and it will continue to be so. Watch for attempts to weaken whistleblower laws, both legislative and judicial. While the courts have consistently enforced retaliation laws, they’ve been reluctant to rule in favor of employees in any situations where there was doubt about the legislative intent. For instance, the Fair Labor Standards Act doesn’t expressly prohibit employers from discriminating against potential employees who have sued former employers for overtime or unpaid wages. Watch for more courts to hold that the word “employees” doesn’t mean “potential employees.” Will there be a public outcry when potential employers refuse to hire people who demanded they be paid? My sources say no.

Bullying: No state will have the political willpower to pass anti-bullying laws, despite the growing evidence that bullying is more traumatic for employees than sexual harassment. It is decidedly so.

Tax relief: The Civil Rights Tax Relief Act will stall yet again, meaning that employment law settlements will continue to be taxed where personal injury cases aren’t. Try again later.

Unemployed: The unemployed will start to get some rights. More states will pass laws protecting the unemployed against discrimination. Employers will get more creative in denying them jobs by using credit checks and other excuses. Eventually, Congress will have to take action, but gridlock is likely in this election year. Outlook not so good.

Wage theft: As more employers decide the way to save money is to fail to pay employees or former employees, wage theft laws will begin to spread across the country. Maybe seeing a few deadbeat employers hauled off in handcuffs will be good for the economy. As I see it, yes.

Noncompete: Desperate employers trying to prevent employees from skipping to competitors who will treat them better and pay more money are using noncompete agreements as virtual indentured servitude. You’d think that elected officials would look at noncompete abuse and side with their constituents, but instead the trend is to give employers even more right to restrict competition. I predict more states will beef up employers’ ability to enforce noncompetes. The good news is that employees with resources will be using antitrust laws and the lack of legitimate interests to enforce to fight back. Noncompetes will continue to be the weapon of choice to bully former employees. Without a doubt.

Confidentiality and trade secrets: Agreements where employees promise to keep employer confidential and trade secret information confidential will go hand in hand with noncompetes as a weapon against former employees. Employees who never signed noncompetes will be told by former employers that working for a competitor would inevitable result in disclosure of confidential information. Will judges side with employees who resist indentured servitude? Don’t count on it.

Employees strike back: Working people and the unemployed will eventually wake up to what is happening to them. They’ll start standing up for their rights and demanding that their elected representatives work for them to restore their right to quit and work somewhere else, to get paid and not have a potential employer hold that against them, and that they be able to work free from sexual harassment. Will they do it in time for the November election? Ask again later.

Can My Potential Employer Discriminate Against Me Just Because I’m Unemployed?

Unless you live in New Jersey, the answer is yes. New Jersey is the only state in the nation so far that has passed a law against unemployment discrimination. The EEOC held hearings on the issue because they are concerned this type of discrimination might also have an adverse impact on minorities, older employees, the disabled, and women. As an example, African-American and Hispanic unemployment rates are much higher than Anglo unemployment rates.
 

            Still, many employers refuse to even consider you for unemployment unless you have a current job. You’d think in a climate with huge unemployment rates hovering around 10% that employers would realize they’re eliminating a large segment of qualified candidates, but HR is slow to change its practices, even in a recession.

            The good news is that the Fair Employment Act, pending in Congress, would prohibit this type of discrimination. New York also has pending proposed legislation to ban unemployment discrimination. I predict that more states will follow. With states trying to cut the number of people collecting unemployment, it makes pure fiscal sense to ban this type of discrimination.

            Donna’s tips:

a.       If you see an ad that says you must be employed to be considered, but you think you’re qualified, apply anyhow. If you’re turned down for a less qualified candidate, then find out if that person is of a different race, age, sex, national origin, etc. If so, you might have a discrimination claim.

b.      Some people are forming their own companies while unemployed to do consulting or other contract work. That way, you can say you’re employed by your company. The downside is that this might affect your ability to collect unemployment benefits, so check with your state unemployment office about this.