Recording Meeting In Office Protected by National Labor Relations Act

For those of us in all-party consent states like Florida, it's always an issue whether employees may record conversations with supervisors surreptitiously. Now employees have another weapon in their arsenal to support the legality of office recordings: the National Labor Relations Act (the Act).

In a recent decision, a National Labor Relations Board Administrative Judge held that a recording of a meeting where unionization was being discussed was both legal and protected by the Act, even though company policy prohibited such recordings:

Section 7 of the Act reads as follows: 

Employees shall have the right, to self-organization, to form, join, or assist labor 35 organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a 40 condition of employment as authorized in section 8(a) (3). 

29 U.S.C. § 157. Thus, employees have a statutory right to engaging in union and protected concerted activities, or to refrain from any and all such activities. Cf. Stanton Industries, Inc., 313 NLRB 838, 848 (1994) (noting the Board has “pointed out over and employees have the 45 right to engage in union activities, as well as the right to refrain from engaging in union activities, which rights are guaranteed by Section 7 of the National Labor Relations Act.) JD(SF)–21–19 14 

Regarding Mansour, I find that his actions were protected by Section 7 of the Act. In the January 9 captive-audience meeting Respondent was presenting its position to employees and attempting to persuade them to vote the Union out. Mansour had never previously been in a 5 union, he is dyslexic, and English is his second language. He decided to record the meeting to listen to it more carefully later and get a better understanding of what being discussed. Mansour was simply documenting the meeting in order to study Respondent’s position, so he could make an educated choice when voting to either retain or decertify the Union. Respondent argues his actions are not protected because he did not discuss his intentions to record the meeting with 10 anyone else. However, I find Respondent’s argument misguided.

The judge also found that the recordings were legal under Washington law because the subject matter, unionization, was not private and the employer could not restrict employees from discussing what happened in the meeting. Further, the judge determined there was no expectation of privacy in the meeting.

So, while this decision only applies where the meeting is about unionization or working conditions on behalf of coworkers as well as yourself, and only if you aren't in management, and only if you work for an employer covered by the Act (which is most non-government employers), it may keep you from being fired (or prosecuted) if you get caught recording a workplace meeting.

What Unions Can Do To Help Immigrant Members

The National Immigration Law Center has this helpful information for unions that want to help their members in this time of ICE raids:

If you belong to a labor union, there are ways it can help you. You should talk to your union representative about your concerns. If it would make you feel more comfortable, ask some of your co-workers to go with you to talk to your representative. Your union contract might have language that protects union members, such as an agreement with the employer that has one or more of the following provisions:

• The employer will not allow any Immigration officers to enter the workplace without a valid warrant signed by a federal judge or magistrate
• The employer will immediately notify the union if the Immigration authorities contact the employer for any purpose so that the union can take steps to inform its members about their legal rights or to help them obtain legal assistance.
• The employer will allow lawyers or community advocates brought by the union to interview employees in as private a setting as possible in the workplace. The union might also have a legal plan, which provides workers with immigration attorneys.
• The employer agrees not to reveal the names, addresses, or immigration status of any employees to Immigration, unless required by law.
• The employer will not participate in any computer verification of employees’ immigration or work authorization status.

I hope labor unions that don't have these provisions in place will look at ways they can negotiate to help their immigrant members.

What To Do If ICE Shows Up At Your Workplace (For Employees)

Since it looks like the ICE raids have started, I thought I'd publish this helpful information put out by Penn State Law's Center for Immigrants’ Rights Clinic:

All people living in the United States, including undocumented immigrants, have certain U.S. Constitutional rights.  

If immigration officers (ICE) come to your work place, they must have a valid search warrant or the consent of your employer to enter non-public areas. If you are undocumented and immigration officers come to your work place, be aware of the following: 

• Do not panic and do not run away. If you are frightened and feel like you need to leave, you can calmly walk toward the exit. 

• If you are stopped, you may ask if you are free to leave. If the officer says no, do not try to exit the building. 

• If you are questioned, you may tell them you want to remain silent. 

• You have the right to remain silent. You do not need to speak to the immigration authorities or answer any questions. 

• If you are asked where you were born, or how you entered the United States, you may refuse to answer or remain silent. 

• If you choose to remain silent, say so out loud. 

• If they ask you to stand in a group according to immigration status, you do not have to move, or you can move to an area that is not designated for a particular group. 

• You may show a know-your-rights card to an officer that explains that you will remain silent and wish to speak to a lawyer. 

• You may refuse to show identity documents that say what country you are from. 

• Do not show any false documents and do not lie. 

• You have the right to speak to a lawyer. If you are detained or taken into custody, you have the right to immediately contact a lawyer. 

• Even if you do not have a lawyer, you may tell the immigration officers that you want to speak to one. 

• If you have a lawyer, you have the right to talk to them. If you have a signed Form G-28, which shows you have a lawyer, give it to an officer. 

• If you do not have a lawyer, ask an immigration officer for a list of pro bono lawyers. 

• You also have the right to contact your consulate. The consulate may be able to assist you in locating a lawyer. 

• You can refuse to sign any/all paperwork until you have had the opportunity to speak to a lawyer. 

• If you choose to sign something without speaking to a lawyer, be sure you understand exactly what the document says and means before you sign it.

Even if you aren't an immigrant, you can help coworkers by having this information handy in case of an ICE raid.

Enjoy Your Summer Internship - You May Never Work In Your Field Again

In a new low for management side, the Wall Street Journal exposed the ugly practice of intern noncompetes. That's right. Intern. Noncompetes.

Let me get this straight. A college or high school student goes to work for little or no pay, and they are handed a bunch of papers to sign. They're so thrilled at the opportunity to work for this company, they don't read. They just sign. They never get a copy of what they signed.

Surprise! After they graduate, they get their dream job in the industry, and along comes the nastygram. "Dear John, You aren't allowed to work at your dream job because you signed a noncompete. You can't work in your field for two more years. By then, all the entry level jobs will be taken. Enjoy your work at McDonald's flipping burgers." And the letter to John's employer: "Dear New Employer: You hired John. He signed this noncompete. If you don't fire John, we'll sue you, your mother, your dog, and everyone you ever met."

So John is fired, and he's fighting a big corporation from the position of being unemployed. The new employer now has a bad taste in its mouth for John, so he's lost that opportunity. He's out of his field and unable to fight. Lesson: read everything before you sign, and keep copies. If you can't live with it, don't sign.

Yes, there are defenses to noncompetes. But to fight them, you have to be able to afford an attorney and court costs. Most people, especially recent college grads, can't afford that.

My state's Senator, Marco Rubio (with whom I almost never agree, except now) has proposed a bill that would prohibit noncompetes for hourly employees. That would be a great start.  Democrats have repeatedly tried and failed to limit noncompetes over the years, so maybe a Republican can get his colleagues to listen.

Some states, like Massachusetts, have also banned noncompetes for hourly and low wage employees. Illinois banned noncompetes for low wage workers. California, Oklahoma and North Dakota ban most noncompetes. There are lots of bills pending that would address problems with noncompetes in various states.

I think luring interns in with the promise of job opportunity and college credit, then making them sign away their right to work in their field, is unconscionable. If you agree, support any elected official's efforts to limit or ban noncompetes.  And vote with your money: don't do business with companies that have obnoxious noncompetes for interns and low wage employees.

Dear Employers: You Can Go To Jail For Firing Employees Due To A Garnishment

Every once in awhile a worker comes to me after having been fired right after a court issues a garnishment order against them for child support (or another debt). This is a violation of both federal and many state’s laws. It is absolutely illegal in Florida. Here are some laws that protect employees from firing due to garnishment:

Consumer Credit Protection Act: This law limits the amounts that can be garnished and sets out the procedures for garnishing wages for any debt. Many employers think this is a pain, so they forget that the law also prohibits employers for firing an employee if they’re garnished for a single debt. If you get a second garnishment, Federal law doesn’t protect you, but state law might. Florida law definitely does.

Penalties Under Federal Law: If your employer fires you after one garnishment, you can get a court order requiring them to reinstate your job, plus back pay. The Department of Labor can sue for you. Employers who willfully violate the law against retaliation can be prosecuted criminally and fined up to $1,000, or imprisoned for not more than one year, or both.

Florida Law: Fla. Stat. Sec. 61.12 provides, regarding child support garnishment: "Any disciplinary action against the employee by an employer to whom a writ is issued pursuant to this section solely because such writ is in effect constitutes a contempt of court, and the court may enter such order as it deems just and proper." Under Fla. Stat. Sec. 61.1301, "A person may not discharge, refuse to employ, or take disciplinary action against an employee because of the enforcement of an income deduction order. An employer who violates this subsection is subject to a civil penalty not to exceed $250 for the first violation or $500 for any subsequent violation. Penalties shall be paid to the obligee or the IV-D agency, whichever is enforcing the income deduction, if any alimony or child support is owing. If no alimony or child support is owing, the penalty shall be paid to the obligor. An employee may bring a civil action in the courts of this state against an employer who refuses to employ, discharges, or otherwise disciplines an employee because of an income deduction order. The employee is entitled to reinstatement and all wages and benefits lost plus reasonable attorney’s fees and costs incurred.

Other State Laws: If the states provide for a lesser amount to be garnished, or provide protection for garnishment of more than one debt, the state laws apply. That means employers need to be aware of the protections their state applies to employees. Some states provide protections against discharge for a child support garnishment, regardless of whether or not there were prior garnishments for other debts. Here’s a list of some state laws on garnishment.

Yes, dealing with an employee’s wage garnishment is a pain. But if you fire them just because you don’t like being inconvenienced, you can end up going to jail over it (and still have them back as an employee). 

If you were fired right after a garnishment, contact an employee-side lawyer in your state to find out about your rights.

Is the Florida Noncompete Statute Unconstitutional? Probably

In light of the infamous Supreme Court decision of Burwell v. Hobby Lobby Stores, Inc., most corporations are "persons" under the U.S. Constitution. Regarding the noncompete statute, corporations should thus be treated as a “person” for purposes of constitutional analysis. 

If corporate people have equal rights with those of individuals for purposes of free speech and religious liberty, so do human people have equal rights with corporate persons for purposes of equal protection under the law.

Thus, the Florida noncompete statute, Fla. Stat. § 542.335, likely violates the Equal Protection Clause of the U.S. Constitution and the Florida Constitution (Article I Sec. 2) in that it prohibits the court from considering undue hardship on employees, but allows consideration of hardship on employers.

In most noncompete lawsuits, employees have been classified from their former employers separately based on a difference, that is, former employee and former employer, which has no reasonable relationship to the ban on considering undue hardship for one side only. If the Florida legislature wants to protect trade secrets, it has already done so through a separate statute. This entire statute treats employees and employers arbitrarily and differently with no rational basis.

If the employees in noncompete litigation were corporations instead of individuals and entered into an agreement limiting their ability to compete or poach customers, there is no doubt they would be prosecuted for antitrust violations.

This statute creates an imbalance by considering only hardship on the employer with no ability to use equity to balance the hardships to the individual human employees.

Furthermore, the provision of the statute prohibiting the courts from balancing the equities likely violates the Florida Constitutional provision governing access to the courts, Article I Sec. 21. That provision protects rights that existed at common law. In Florida, the common law was that noncompete agreements were not allowed. By imposing the arbitrary one-sided balancing and limiting the Court’s ability to balance hardships, the legislature has limited Defendants’ access to the courts.

The statute also likely violates the separation of powers clauses of the Florida Constitution, Article II Section 3 and Article V Section 1 by interfering with the Court’s powers in equity. By prohibiting the Court from considering all factors in equity, including undue hardship, the legislature has interfered with the Court’s powers.

In short, there are several constitutional problems with Florida's unbalanced and biased noncompete statute. Hopefully, the courts will recognize this imbalance and address the constitutional defects in the statute one of these days.

Can I Be Fired For Taking Vacation? Short Answer: Yes

I'm on vacation, and so are many Americans. You shouldn’t have to worry about your job while you’re on vacation. Or should you?

You’ve earned two weeks of vacation, and wow, did you work for it. You put in for your two weeks, got it approved, and planned your trip. You have non-refundable tickets to fly to your dream all-inclusive resort. A week before you leave, you mention that Bob will be covering for you while you’re gone. Your boss says, “Oh, you were serious about taking vacation?” You nod, meekly. You ask a coworker what she thinks he meant. You find out that the last five people who went on vacation were fired.

Should you be worried? The short answer is: yes. There is no U.S. law requiring an employer give you any paid or unpaid vacation. I hear stories all the time of people fired a few days or a week into a scheduled vacation, or the day they get back. Even worse, they’re fired the day before they’re scheduled to leave. They were counting on the vacation pay to cover the cost of the trip. Now they’re left in the lurch.

Vacations are good for you and good for employers. They keep morale higher, prevent employee burnout, reduce stress, and keep you healthier. The good news is that most employers won’t fire you for taking your vacation. Yet a recent survey found that one out of four of Americans are taking no vacation this summer.

The fear of being fired for taking vacation is justified. If you live anywhere but Montana, you’re probably an at-will employee. That means you can be fired for any reason or no reason at all. Do you have any rights? Yes, but not many.

Here are some circumstances where it would be illegal to fire you for taking a vacation:

Family and Medical Leave: If you have scheduled surgery, are pregnant with a due date, or have an immediate family member who has scheduled medical care, you might be protected. If you put in for FMLA leave, your employer must let you use your paid sick and vacation time first before they put you on unpaid leave. If you’re fired because you used your vacation for FMLA leave, you may be protected.

Contract: If your employment contract says you’re entitled to vacation, then firing you for taking it might be breach of contract.

Employee Welfare Plan: If the employer has an established vacation policy for all employees, then it might be an “employee welfare benefit plan” that is covered under ERISA. That means it might be illegal to retaliate against you for exercising your right to take your vacation benefit.

Union contract: If your union’s collective bargaining agreement provides for your vacation benefits, you might be able to grieve any termination that violates your union contract. If you don't have a union at work, look into forming one if you are concerned about your working conditions.

Discrimination: The company can’t discriminate based on race, age, sex, religion, color, national origin, disability, genetic information, or age in granting and denying vacations. Some states have other protected categories such as sexual orientation, marital status, and domestic violence victims. They can favor your boss’s vacation over yours though. If the boss’s vacation conflicts with yours, even if yours was preapproved, they can renege on the approval.

Other than these limited rights, you can absolutely be fired for taking your vacation or to prevent you from getting a paid vacation. Here’s some more information you need to know about your rights while taking vacation:

Wrongdoing discovered: If your employer discovers wrongdoing or even poor performance while you’re on vacation, even if you have a protected right to take it, they can fire you for the wrongdoing they discover. That means if you embezzled and they find out because someone covered for you while you were out, or if you didn’t do a key assignment before you left, then you might not have a job to come back to.

Layoff: Even if you have protected vacation rights, such as under a union or employment contract, if there is a genuine layoff at your company, they can probably include you in the layoff.

Last minute demand to cancel: Sometimes the boss will demand you cancel your plans at the last minute. Maybe an emergency comes up, or she just decides she can’t live without you. If you refuse and take your vacation anyhow, you can be fired for insubordination or job abandonment.

Use it or lose it: If your employer has a “use it or lose it” vacation policy, you probably have no right to be paid for your vacation when you’re fired. However, if your employer lets people accrue their benefits and get paid out when they leave, you are probably entitled to be paid your vacation time when you leave. It’s an earned benefit. Some states protect their citizens by barring use-it-or-lose-it vacation policies. Here are some states that look out for their voters:

• California: Under Cal. Labor Code §227.3, all accrued vacation must be paid when employment ends. California also prohibits policies that make employees take vacation by a certain date or lose it. In one California case, an illegal policy cost the employer millions.
• Illinois: Under 820 ILCS 115/5; 56 Ill. Adm. Code 300.520, employers have to pay out accrued vacation pay at the end of employment unless a collective bargaining agreement with a union provides otherwise. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. 56 Ill. Adm. Code 300.520(e).
• Indiana: While employers can have a use-it-or-lose-it policy in Indiana, employers have to pay out accrued vacation if their vacation policy is silent on the issue. See Indiana Heart Associates, P.C. v. Bahamonde, 714 N.E.2d 309 (Ind. App. 1999); Die &Mold, Inc. v. Western, 448 N.E.2d 44 (Ind. App. 1983).
• Louisiana: Vacation pay is earned wages, so policies requiring the forfeiture of earned vacation pay are not enforceable. Beard v. Summit Institute, 707 So.2d 1233 (La. 1998). However, they may implement use-it-or-lose-it policies saying employees must use by a certain date or lose the vacation.
• Maryland: Like Indiana and Louisiana, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.
• Massachusetts: Employers have to pay out accrued vacation pay at the end of employment. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. MA Atty. Gen. Advisory 99/1.
• Michigan: Similar to Indiana, Louisiana and Maryland, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.
• Montana: In Montana, an employer can't take away earned vacation pay or fail to pay it out for any reason. MT Dept. of Labor and Industry FAQ; See Langager v. Crazy Creek Products, Inc., 287 Mont. 445; 954 P.2d 1169 (Mt. Sup. Ct. 1998).
• Nebraska: Nebraska law prohibits employers from failing to pay out earned vacation or from policies saying employees must use vacation by a certain date or lose it. See Neb. Rev. Stat. § 48-1229(4); Roseland v. Strategic Staff Management, Inc., 272 Neb. 434, 722 N.W.2d 499 (Neb. Sup. Ct. 2006); Neb. Dept. of Labor FAQ.
• New York: If the policy is silent on the issue vacation must be paid out at the end of employment.
• North Carolina: If the policy is silent on the issue, vacation must be paid out at the end of employment. N.C. Gen. Stat. § 95-25.12.
• North Dakota: Employers can't require an employee to forfeit accrued or earned vacation leave upon separation from employment, regardless of the reason. ND Admin. Code § 46-02-07-02(12). However, they can implement policies saying vacation must be used by a certain date or be lost.
• Ohio: While use-it-or-lose-it policies are allowed, vacation must be paid out at the end of employment if the policy is silent on the matter. See Fridrich v. Seuffert Construction Co., 2006 Ohio 1076 (OH App. 2006).
• Oregon: Oregon is another state that allows such policies but requires employers to pay out vacation if the policy is silent on the issue.
• Rhode Island: Employers must pay employees who have completed at least one year of service for any vacation pay accrued in accordance with company policy or contract on the next regular payday for the employee when they leave. RI Stat. § 28-14-4(b).
• West Virginia: If the policy is silent on the matter, vacation has to be paid out at the end of employment. See Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (WV Sup. Ct. 1999). Otherwise, employers are allowed to implement such policies.
• Wyoming: In Wyoming, an employer cannot require an employee to forfeit accrued or earned vacation on leaving. WY Dept. of Employment FAQs.

Should it be legal to fire you for taking your earned vacation? No. But it probably is. The United States is the only industrialized nation that doesn’t have a law requiring paid vacation. One in four Americans receives no paid vacation.

So take that trip to South America or your dream cruise. Enjoy! You may have more free time than you expected when you get back. Maybe it's time we join the rest of the civilized world and require some paid leave for workers. Something to think about when you're voting in 2020.

And now, back to my vacation, which I am definitely taking as much of as I can.