Top 10 Things Not To Do At The Office Holiday Party

It's that most wonderful time of the year. Mistletoe, eggnog and holiday parties in the office make employment lawyers rub their hands together with glee. That's because we get very busy in January after all the party-related firings. There's sexual harassment, discrimination, recriminations, finger-pointing – all the stuff of nice legal fees.
Here are the top things you absolutely should not do at the office holiday party if you don't want to be sitting across a table giving your deposition or reviewing your severance package with an employment lawyer in the new year:

Read more on AOL Jobs.

Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!

Is My Offer Letter a Contract?

Heather submitted this question at Ask A Manager, and I thought it would be a good one to address here:

I was employed at a large successful company - while there, I got a call from a man who is a CEO of a smaller company offering me a job and saying he could beat whatever I was currently making. Long story short, I ended up taking the position in July at the smaller company and leaving my current position. Two weeks ago, the same man who hired me, also hired a sales manager who has convinced my boss that myself and 1 other rep are making too much money and he is trying to significantly lower our salaries and commission structure. My question is: if this man lured me away from my position at with an offer letter of more money and is trying to renege less than 6 months later, what are my rights? Is there a law that states how long an offer letter is good/enforceable?

Thanks
P.S. Not sure if it makes a difference but I live in Texas...

Heather, the bait-and-switch job offer is more common than you’d think. It happens all the time here in Florida, the center of con artists in the universe. Unfortunately, Texas, like most states in the nation, have at-will employment. That means that you can be fired, demoted, have your pay cut, or be disciplined for any reason or no reason at all.

Sure, the offer letter is probably a contract. It’s an offer and you accepted. There was consideration for it, namely, you started working. But what does that contract actually say? If it lays out your pay structure in writing and says it can only be changed in writing signed by both parties, then they can’t change it without your agreement.

If it says you can be fired at-will, then they can fire you for not agreeing. They can also fire you anytime for any reason.

If it says you can only be fired for cause, then what are your remedies? If the offer says you will be employed from x-date to y-date, then you should get paid out for the length of the employment. It might say that if you’re fired without cause you get a specific amount of severance. It might say that they can fire without cause with x-days of notice, in which case you get paid out for the length of the notice period.

One more possibility: fraud. If they had no intention of honoring the agreement when you were lured in, then you might be able to sue for fraud. It’s tough to prove, so things I’d look at are whether they’ve done the same thing to others. Is this a pattern? Is there some smoking gun or witness that would confirm they never intended to honor the offer? Or did the company have a sudden downturn after you started? If it’s a downturn, then there wasn’t fraud.

Donna’s tips:

a. If you are leaving a secure job for a new position, try to get some assurances in writing about job security. If they want you badly enough, they might agree to put in that they can only terminate for cause and some reasonable severance.

b. If you do get a contract, be careful what you sign. I’ve seen unscrupulous competitors lure top sales people over, have them sign non-compete agreements, then fire them a few months later. Surprise! You’re out of the industry unless you have the financial resources for a long legal fight.

c. Do your due diligence before you accept a job that sounds too good to be true. Google the new employer. Ask to speak to some coworkers before you accept. See if you can find some former employees (try LinkedIn, which lists former employers) to talk to about what their experiences were.

d. If you decline a unilateral pay cut and are fired or quit as a result, you might qualify for unemployment.

Have you ever gotten a job offer that wasn’t what it seemed? If so, did you take legal action or just leave as soon as you could? Do you think there should be some consequences to employers who make phony job offers? If so, what should they be?

I’d also love to hear from other lawyers and HR people, especially in Texas, to see if you have more advice for Heather.

Can My Employer Make Me Speak English, Even On Breaks?

I got this excellent question from flower on Ask A Manager recently:

Hi, I have a question about languages. I work in the shop as a sales assistance. I am from other country and there are working 5 more persons from the same country as me. So about 2 month ago my boss told for us that we can not speak in our language at all times even there are no customers around. Can they do that?

Thanks for asking, flower! This comes up a lot in areas, like South Florida where I live, that have a large immigrant population. Not surprisingly, EEOC has a section in its compliance manual addressing this specific issue because it is a common problem.

In general, English-only rules in the workplace are allowed if they are enacted for non-discriminatory reasons. Examples of good reasons to have English-only rules would be because customers, supervisors and coworkers speak only English; for workplace safety reasons such as emergencies where everyone needs to understand; to promote efficiency for cooperative assignments; and to allow supervisors who speak only English to monitor the employees’ communications with customers.

Examples of illegal policies would be:

• Prohibiting non-English speaking on breaks
• Subjecting speakers of foreign languages to excess scrutiny
• Prohibiting one particular foreign language from being spoken
• Requiring English-only if coworkers and customers speak multiple languages

Employers also must look at alternatives to English-only rules that might have less of a discriminatory impact. For instance, if an employee reports that two coworkers made derogatory comments about a customer in Sanskrit, disciplining the two employees would be the way to deal with the issue rather than an all-out ban on foreign languages.

Donna’s tips:

a. If your employer implements an English-only policy, the biggest question is why they did it. If they just don’t like hearing Spanish all day, too bad. That’s illegal. If there have been safety issues where an employee called out key instructions in Spanish and someone was hurt because they didn’t understand, then the employer might have a legitimate reason for the rule.

b. Sometimes having a few coworkers speaking a foreign language causes problems with other employees. Morale problems may develop as people think they’re being talked about behind their backs. This might also justify an English-only rule.

c. If you think your employer’s English-only rule discriminates against you based on national origin, it might be time to contact an employment lawyer, make a complaint of national origin discrimination with HR, or file a charge of discrimination with EEOC.

I’d love to hear from you on this. Does your employer have an English-only rule? Does it work or cause problems? If you’re an employer or management-side lawyer, have you ever implemented an English-only policy? Why did you think it was necessary? In general, do you think English-only policies should be banned or should employers be allowed to make any rules they want?

Congratulations to the Blawg 100!

I'm incredibly honored to have Screw You Guys, I'm Going Home named one of the American Bar Association's Blawg 100 of 2011. Out of over 1300 nominated, eight of my favorite labor and employment blogs were chosen along with my blog. Of those, I'm pretty sure mine is the only employee-side blog, so I'm extra honored.

Included in the list are:

Employment and Labor Insider by Robin Shea


The Employer Handbook by Eric Meyer

Arizoneout by Dinita James

Connecticut Employment Law Blog by Daniel Schwartz

Delaware Employment Law Blog by Molly DiBianca

Ohio Employer's Law Blog by Jon Hyman

FMLA Insights by Jeff Nowak

Work Matters by Mike Maskanka

If you haven't checked these out, you should. They're all well worth reading.

Thanks so much to everyone who nominated me. It really means a lot.

But it's not over. There are 12 categories of blogs, including Labor and Employment, and ABA wants you to vote for your favorite. You can vote once in each category. Registration only takes a minute and it's ultra-simple, I promise. You don't have to be a lawyer to vote.

What You Need to Know If You're Injured At Work

If you are injured at work, you probably can’t sue your employer. Instead, you’ll likely have to make a worker’s compensation (worker’s comp) claim. An employer who carries worker’s comp insurance is mostly immune for suits for workplace injuries.

Intentional injuries: assault, battery, defamation, and other intentional torts are usually not covered by worker’s comp.

Coworker liability: your coworkers are also likely immune from suit for workplace injuries if the employer has workers comp insurance. However, they could be personally liable for assault, battery, defamation and other intentional torts.

Making claims: you need to follow the employer’s claim procedure for worker’s comp claims. This usually means that you need to report the injury to your supervisor and they need to prepare an injury to report to file with the state worker’s compensation board. You need to notify them as soon as possible, providing the date of injury, witnesses, and how the injury happened.

Light duty: if your company has light duty, they may have to provide it to you and you will be able to get worker’s comp benefits that make up the difference. But many employers will deny that they have light duty and then you may lose coverage because you’re able to work. It’s important to speak with a worker’s comp attorney before you try to go back to light duty.

Work-related: if the injury happens at work or is related to work, such as when you’re running an errand for work, then it should be covered if it was an accident.
Retaliation: generally, your employer can’t retaliate against you for making a worker’s comp claim.

Donna’s tips:

a. Don’t delay if you’re injured. If you wait months before making the claim, your employer may not believe that you were injured at work. The sooner you make your claim, the better your witnesses’ memories will be.

b. Workers’ comp requirements are tough to navigate sometimes. If you have a serious injury, you probably need to talk to a worker’s comp attorney.

So, have you been injured at work? Were you retaliated against? How? Are you an attorney who has handled cases involving retaliation for making worker's comp claims? Did you get reinstated? Did the employer end up paying your lost wages? Did the legal system work or does it need fixing in this type of case? What needs fixing and how would you fix it? I'd love to hear about your experiences, good and bad.

What You Need To Know About Missing Work Due to Illness

Know your employer’s sick leave policy. Most employers require that you call in as soon as you know you won’t make it. No law requires paid sick leave.

Family and Medical Leave: applies if you have a serious medical condition and need several days off, or need intermittent leave for treatment.

Accommodations: if you have an illness that qualifies as a disability, you might be entitled to accommodations that will enable you to perform all the duties of your job.

Excessive absenteeism: unless you qualify for FMLA leave or have a disability for which you are seeking accommodations, your employer can fire you for any reason, including absenteeism. Know what they consider excessive. If you have to come to work sick, that’s better than losing your job.

Donna’s tips:

a. Lots of people express surprise that they were fired after being sick. “But I had a doctor’s note!” they say. A doctor’s note won’t help you unless you qualify for FMLA leave or an ADA accommodation. 90% of life is just showing up. (Woody Allen). Your employer is entitled to have you at work.

b. If you are contagious, then your employer requiring you to come in anyhow might be an OSHA violation. You can point this out, but don’t be insubordinate.

c. If ordered to come in, then rent a stretcher if you have to. Unless going to work endangers your life, comply with the boss’s order to come to work. Appeal to HR if you can, but don’t lose your job.

What You Need To Know About Your Employer's Health Insurance

No Federal law requires your employer to carry health insurance coverage for employees (a few states, like Massachusetts and Hawaii, are different). However, once they do have coverage, there are some Federal requirements employers must comply with. If your employment has ended, read the paperwork you get on COBRA to find out about your rights to continued coverage. If you're still employed or about to be employed, here's what you need to know about your insurance.

Non-discrimination: Your employer must not discriminate in providing or reducing coverage based on , for example, age, disability or pregnancy.

Plan description: The Employee Retirement Income Security Act (ERISA) requires your employer to provide a description of your plan and how to make claims.

Privacy of records: If your employer does have access to medical records, such as when it’s self-insured, it must comply with the privacy requirements of HIPAA.

Specific coverage requirements: Certain procedures must be covered once insurance is provided. For instance, if mastectomies are covered, then reconstructive surgery must also be covered. Insurance can’t restrict the length of hospital stays for the birth of a child to less than 48 hours for vaginal delivery or 96 hours for c-section.

Preexisting conditions: HIPAA limits exclusions for preexisting conditions to no more than 12 months, and allows plans to look back no more than 6 months. Pregnancy and genetic information can never be excluded. If you were covered by a prior plan and had less than a 63 day break in coverage, preexisting conditions won’t be excluded. Most children can’t be excluded based on preexisting conditions.

Health factors: You can’t be denied insurance or have benefits reduced due to your health status, physical or mental illness, claims experience, receipt of health care, medical history, genetic information, conditions arising from domestic violence, participation in hazardous activities, or disability.

Certificate of coverage: The employer must provide a certificate of coverage automatically at certain times, and upon request.

Young adults: Your plan must allow you to have your children covered up to age 26.

Lifetime limits: No lifetime limits on coverage are allowed anymore. Most plans won’t be able to have annual limits.

Rescission: If you become ill, the insurance company can’t look for unintentional mistakes on your application as an excuse to deny coverage.

Eliminate or reduce coverage: Your employer can eliminate coverage or change plans at will.

Donna’s tips:

a. Your employer has to disclose if it believes its plan is “grandfathered” and exempt from some of the new health care reform’s requirements. If it is grandfathered and significant changes are made to the plan, it might lose its grandfathered status and have new requirements.

b. Non-grandfathered plans must provide access to pediatricians and OB-GYNs and coverage of preventive services with no cost sharing.

c. Read your plan and understand it. Don’t wait until a crisis to understand your health care coverage and rights.