Beware the Dark Side: "But For" Doesn't Mean "Sole Cause" In Retaliation Claims

The management-side bar celebrated when the Supreme Court ruled in University of Texas Southwestern Medical Center v. Nassar that Title VII retaliation claimants must prove that retaliation was not just a motivating factor, but the "but for" cause of the retaliation. While I'm all for a good celebration, I wouldn't break out the champagne yet if I were on the dark side. (Heaven forbid. As Luke Skywalker said, "Never. I'll never turn to the Dark Side.")

For any type of discrimination other than age, and now retaliation, employees must prove that discrimination was either a substantial or a motivating factor in whatever action the employer took against them. This leads to a tortured analysis the courts use in "mixed motive" cases, where the employer had more than one reason for their actions. If the employee proves discrimination was a substantial or motivating factor, the employer can show (not actually prove, mind you) a legitimate reason for their actions. Then the employee must prove (not just show) that the reason given was pretextual (phony, made up, a load of cr**), and that the real reason was discrimination. Then the employer gets to come back and prove it would have made the same decision even if it hadn't discriminated. Whew! That's a whole lot of confusion to explain to a jury, and I'm over-simplifying it. No wonder employers like it. But having a confusing standard wasn't enough for the dark side.

Instead, they pushed the courts to establish an even tougher standard. What the Supreme Court came up with in Nassar was the "but for" standard. That is, but for the discrimination, the employer wouldn't have fired, demoted, refused to hire, etc. The majority opinion refers to "but for" as a tougher standard. But is it really? The dark side will try to claim that it means "sole cause." It doesn't.

Chief Justice Roberts (along with 3 of his conservative compatriates) complained in 2011 in CSX Transportation, Inc. v. McBride that the jury instruction the majority approved was the "but for" standard. He says, "The test the Court would substitute—whether negligence played any part, even the slightest, in producing the injury—is no limit at all. It is simply 'but for' causation.' He describes this scenario to demonstrate what he believes "but for" causation is:

For instance, if I drop a piano from a window and it falls on a person, there is no question that I was negligent and could have foreseen that the piano would hit some­one—as, in fact, it did. The problem for the Court’s test arises when the negligence does not directly produce the injury to the plaintiff: I drop a piano; it cracks the side­walk; during sidewalk repairs weeks later a man barreling down the sidewalk on a bicycle hits a cone that repairmen have placed around their worksite, and is injured. Was I negligent in dropping the piano because I could have foreseen 'a mishap and injury?' Yes. Did my  negligence cause “[the] mishap and injury” that resulted? It depends on what is meant by cause. My negligence was a “but for” cause of the injury: If I had not dropped the piano, the bicyclist would not have crashed. 

(citations omitted). He goes on to explain why he thinks the Court should impose more than "but for" causation. Yet Justice Roberts and the other three dissenters in CSX agreed with the majority in imposing "but for" causation in retaliation claims.

The instruction the Court in CSX approved was this: "Defendant ‘caused or contributed to’ Plaintiff’s injury if Defendant’s negligence played a part—no matter how small—in bringing about the injury." The majority commented that the cases CSX cited were proven by more than the "mere 'but for' causation." They rejected the concern that juries might utilize "far out 'but for' scenarios."

Does this "but for" standard sound like something that an employment plaintiff will have a hard time proving? Not to me. Will the four dissenters in CSX agree that this instruction fulfills their "but for" standard in retaliation cases? I'd certainly argue this is the instruction now applicable to retaliation cases.

You don't have to believe me on this. Courts interpreting "but for" in discrimination cases have said this about the standard:

• “[T]he plaintiff's age must have 'actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome.'"
• Statutory language “merely imposes a ‘but for’ liability standard” requiring showing only that the protected classification was “a determinative, rather than the sole, decision making factor.” 
• “But-for” causation is defined as “a factor that made a difference in the outcome.” 

Let's look at how this should apply in a real retaliation case. Joe complains about being sexually harassed by a coworker. His supervisor wants to protect the coworker, so starts looking at Joe's work with a fine tooth comb. Joe is written up for picky things that his coworkers also do. He's fired for having 3 write-ups in a 90 day period. Sure, the picky violations are a "but for" cause. However, so is the retaliation. But for the supervisor's determination to retaliate, he wouldn't have started writing Joe up for these violations.

Here's another example. Jane complains about age discrimination. The company decides to get rid of her, so they audit all her recorded customer calls. They wouldn't normally have done the audit. They discover a call where she got terse with a customer and hung up. They fire her for violating standards of customer service. But for the age discrimination, she wouldn't have complained. But for the complaint, they wouldn't have done the audit. But for her violation, she wouldn't have been fired (or they'd have kept digging for something else). In my opinion, Jane wins on both the age and retaliation claims under the "but for" standard. She might not have won under the "mixed motive" standard. In this case, the Supreme Court may have done Jane a favor.

We'll have to see how this all plays out, but any defense lawyer who argues that "but for" means "sole cause" should be subject to sanctions for making a frivolous argument. I'd love to hear from any employee-side attorneys who manage to smack down such a silly argument. Does this mean that management-side won't try to push "sole cause?" No. Will the courts buy it? Stay tuned.I'll let you know if I hear of any cases on this one way or the other post-Nassar.

In the meantime, don't be afraid of the "but for" standard. Embrace it. As Yoda said, "Fear is the path to the Dark Side. Fear leads to anger, anger leads to hate, hate leads to suffering." Better yet, he said, "The fear of loss is a path to the Dark Side." So embrace the Force, and keep fighting the good fight.

Answers To Your Questions On Noncompete Agreements

I was just going through some of my old blog posts when, what to my wondering eyes should appear, but new(ish) questions on some posts from long, long ago. The post with the most questions is  Non-Compete Agreements - Top 5 Ways To Get Out of Yours, which I wrote in 2010. Since I'm a fan of all things undead, I thought I'd pick a couple of neglected questions and bring them back to life by answering them here.

Please remember that asking me questions in my blog doesn't create an attorney-client relationship, nor are my answers legal advice. I'm glad to discuss legal issues generally and offer my thoughts. Asking here is for public consumption, as are my answers.

Fired 10 Days After Signing Noncompete

Here's a question from Jeremy M:

My state (Kansas) has a law saying employment can be enough consideration at the time of hire, but I can not find anything relating to a condition of continued-employment. After a year of employment with-out a non-compete at a local sales firm I was threatened with my job unless I signed a non-compete. It was during the holidays last year and I was the sole-provider for my family. After a couple of weeks of almost daily mentions I finally signed under pressure, only to be terminated 10 days later. It truly felt like it was a setup.

Do you know where I can research more regarding the consideration clauses of my state? I don't feel I have the resources for a employment lawyer, and am considering self-representation. Thank you for any insight!

 I'm so sorry to hear about this Jeremy. You'd be surprised how common it is for employers to demand an employee sign a noncompete where the only consideration is continued employment, then fire the employee shortly after firing. That's very likely considered fraud in the inducement, which means that they never intended to continue your employment when they demanded you sign, so the fraud might void the noncompete. The elements of fraud in the inducement are: 1) A false statement of material fact; 2) The person making the statement knew it was false or made the statement with reckless indifference as to its truth or falsity; 3) They made the statement knowing you'd rely on it; 4) You did rely on it and were damaged. Sounds like your situation.

Some states also recognize fraud by omission, where one party has special knowledge that the other party couldn't discover, or where they had a duty to disclose, and treat the omission the same as if they'd made a false statement. Unless something really drastic happened in those 10 days, such as losing a major customer or being hit by a meteor, the company probably knew you were going to be fired when you signed.

I looked for a place online that outlines the noncompete laws in all 50 states and found one here by the firm Beck Reed Riden LLP in Boston. Their chart says Kansas is one of the states that allows continued employment as valid consideration. However, if they never intended to continue your employment, that might also be a failure of consideration.

I'd suggest talking to an employee-side employment attorney in Kansas about your rights. You can search for attorneys by state on the National Employment Lawyers Association website. NELA members represent employees.

Can Customers Follow Me If I Don't Have a Non-Compete?

Here's a question from Arsalan:

Hi Donna,
I am switching jobs and going to another company who is a potential competitor to my current employer. There are clients at my current employer who are asking me if they can come to my new employer because they want me to provide them the services. I do not have a non-compete with my current employer. Should I encourage the clients to come to my new employer and it's asking for trouble.

Thanks!

 Hi Arsalan. If you don't have a noncompete, then make sure you don't have a non-solicitation agreement. That's an agreement saying you can't solicit the company's customers to follow you to your new employer or to leave/reduce business with your former employer. If you have neither, then you're probably free to do business with your former employer's customers.

A couple of things come to mind to watch out for. If the customers have contracts with your former employer, don't ask them to or encourage them to break or cancel the contracts. You might get sued for something called tortious inteference with a contractual relationship. If the customer already left them or intends to leave them, then you probably won't be tortiously interfering.

If the company has a confidential customer list, then be careful. You might get accused of violating trade secrets law if you take the customer list with you and start using it. You're better off using publicly available information if you can. For instance, if you sell a computer program for banking, get a banking directory or Google "banks" and start from there. In most states, publicly available information is not a legitimate interest for your former employer to protect even if you do have a noncompete.

When in doubt, talk to an employment lawyer in your state about your rights and responsibilities. Good luck!

That's all for the zombie Q&A for now. I'll try to resurrect some old questions again in a future post.

Your Rights Regarding Pre-employment Credit Checks

Nevada has just joined the ranks of 9 other states that have outlawed the use of credit history to discriminate against potential employees. However, they're still a minority. Still, there’s a clear trend in the states. According to the National Conference of State Legislators, “42 bills in 24 states and the District of Columbia have been introduced or are pending in the 2013 legislative session relating to the use the credit information in employment decisions. Out of the total 42 bills, 39 address restrictions on the use of credit information in employment decisions.”

In most states, pre-employment credit checks are legal. Employers argue that bad credit are an indication that the person may embezzle or be dishonest. I say nonsense. People with good credit embezzle all the time. People with bad credit may have just had a run of bad luck, a nasty divorce, uninsured medical bills, or some other unavoidable financial disaster. Being poor is not the same as being dishonest.

The recession brought this issue to a head. Suddenly 10% of the population was unemployed. People with stellar credit found themselves in trouble. While government tends not to pay attention to issues affecting the poor, when it hits the middle class, suddenly everyone cares.

There have been multiple attempts to address this situation in Congress. All have failed. In my opinion the current Congress won’t do anything until the problem starts to impact the upper class. We have a very anti-employee majority in office. The only way things will change is if voters speak up and tell their representatives to make employers butt out of their finances.

So, what do you do if you're in the unlucky majority of states that still allow this invasion of your privacy?

I suggest honesty. If you have bad credit, be ready to explain your situation. Tell the interviewer your plan to address the situation. While being “in over your head” may be considered an indicator of potential dishonesty, it doesn’t mean you’re going to become an embezzler. If you can demonstrate that you have a plan to get out from under the debt, the HR department might feel reassured.

What are your rights if an employer runs your credit history?

If your potential employer is going to run a credit check, then they must comply with the Fair Credit Reporting Act. This requirement covers anything the employer is getting from a consumer reporting agency that covers personal and credit characteristics, character, general reputation, or lifestyle, but not the HR department running your name on Google, checking out your Facebook page, or reading your blog.

If they are going to run a credit check, they have to give you a document solely for the purpose of telling you they intend to conduct a credit check. It was probably shoved in with a stack of papers they handed you with your application or pre-employment forms. They need your permission in writing.

They must also tell you if they’re about to deny a job, reassign, or terminate you because of what was disclosed in a credit report. They must give you written notice with a copy of your credit report and a document called "A Summary of Your Rights Under the Fair Credit Reporting Act.” This process does not apply to truckers.

Once the employer decides to use the report against you, they must then give another notice, this time telling you the name of the agency that did the credit report, saying the agency isn’t the one that made the adverse decision, and telling you how to dispute the information in the report with the agency. This notice can be verbal or in writing, unless you’re a trucker, in which case it must be written.

If an employer runs your credit history without permission, they’ve broken the law. If they don’t jump through all the hoops required under the Fair Credit Reporting Act, you have potential claims against them. In that case, contact an employment lawyer in your state to discuss your options.

The EEOC views the use of employment credit checks as potentially discriminatory against women and minorities. If you’ve been denied a job or had other adverse action taken against you by an employer based on bad credit, you might want to explore the possibility that you have a discrimination claim with an employee-side employment lawyer in your state..

Why Should Employers Have All the Injunction Fun? How To Stop Your Ex-Employer From Harassing You

By: Associate Attorney who now chooses to be anonymous, Donna M. Ballman, P.A., Employee Advocacy Attorneys

When you leave a job and start working somewhere else, you may be greeted with a letter from your former employer threatening legal action against you unless you quit your new job. The ex-employer may claim you are bound by a non-compete agreement, non-solicitation agreement, or a confidentiality agreement. Your ex-employer may allege that you were privy to trade secrets or other confidential information and claim you are forbidden from working for the new employer, because it is a competitor of your ex-employer. (Ms. Ballman has tackled the ins and outs of these agreements in length in prior posts, so I will not waste your time explaining these dreadful contracts).

Most employees who get letters like this are forced to quit the new job, usually because they cannot afford to defend against a lawsuit if the employer makes good on his wicked promise. However, you may be able to get an injunction against the employer’s anti-competitive and restrictive actions.

An injunction is a court order that would require your former employer to perform an act or restrain the employer from acting in a particular way. In order get a court to issue an injunction, the you’ll have to prove (1) the likelihood of irreparable harm, (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) that a temporary injunction will serve the public interest.

Almost every state has an antitrust statute, or similar law, prohibiting anti-competitive behavior in the market place. Federal law also provides injunctive relief in limited circumstances. Sometimes these antitrust statutes specifically permit injunctive relief against the types of behavior discussed above. For instance, when a person violates Florida’s Anti-Trust Law, the aggrieved party is entitled to injunctive relief against threatened loss or damage and even authorizes attorney's fees and costs to a plaintiff who substantially prevails on such a claim.

Make sure you check your local state statute to see if similar relief is available. Some states do not have antitrust laws, others only have criminal penalties for antitrust violations, and some only permit a civil action to be brought by the state attorney general.

It is common for employers to move for injunctions against ex-employees it believes are violating non-compete agreements and the like. This is usually because antitrust laws, such as Florida’s, have specific provisions providing that the violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of that covenant. This makes it much easier for the employer to obtain an injunction. However, non-compete laws are an exception to anti-trust laws. They are only enforceable if they are supported by a legitimate business interest, not expired, not over-broad, and that satisfy other requirements that vary from state to state.

Normally, proving “irreparable injury” is an uphill battle. In most cases, the irreparable injury must be immediate. This is probably why many employees have not been successful in getting courts to issue injunctions against former employers. However, it is a positive sign for employees that state law makers have drafted these statutes providing injunctive relief. It demonstrates that legislators recognize the importance of preventing monopolies. This means you may be able to persuade a court to enjoin your employer if it tries to restrict you from freely working and competing in the marketplace.

If you believe your ex-employer’s actions may be considered an illegal restraint on trade or commerce, you should contact an employee-side employment attorney in your state. Proving the elements for injunctive relief and antitrust violations can be difficult and you should have an attorney assist you.

If you are successful in getting the injunction, the Court will attempt to maintain the status quo. This means, for the time being, no more pesky letters from your ex-employer. You may now freely enjoy your new job without your ex trying to ruin it all for you.

Top 6 Signs Your Unpaid Internship Should Be Paid

In honor of my daughter landing her first internship, I thought I'd go through once again an issue that comes up every summer. Many internships that are unpaid are exploiting young people for free labor instead of providing a meaningful learning experience.

If your internship is more about scut work and less about learning, you are probably an employee who needs to be paid, not an intern. Here are some top signs that your unpaid internship is really a job that should be paid: 

1. You aren't learning: An internship is supposed to provide training similar to that you would receive in a vocational school. In other words, you should be learning something helpful to your future career. If you're sorting mail, licking envelopes, filing, digging ditches or picking up the boss's dry cleaning, that work has to be paid. Internship assignments are supposed to build on each other to help you develop more skills, similar to the way each chapter of a textbook builds on the other.  
2. You have someone else's job: If you find out you're the temp covering for someone on maternity leave or you replaced a salaried guy they thought was making too much money, you have a job, not an internship.
3. You're on your own: Let's say they toss you in a room and say, "Here's the manual. Do this project on you own. Tell me when it's done." You are an employee.
4. The company benefits, not you: This is where most intern programs go seriously wrong. The company is supposed to be giving training that benefits you way more than it benefits them. If they can make money off what you're doing, or if you're saving them from having to pay another employee, you probably have to be paid. 
5. They promise a job at the end: The whole point of the internship is probably that you want them to hire you somewhere down the line. However, if you are guaranteed a job if you complete a specific training period, you're likely a trainee and must be paid. 
6. Where's my check?: If you go into a job thinking you're going to be paid and they announce only after you start that you're an unpaid intern, you're probably an employee. If you didn't understand before you accepted that there would be no pay while you're training, then you're probably entitled to be paid.

 The Department of Labor has been cracking down on illegal unpaid interships for several years. If your employer screws up, they may owe you wages, overtime, liquidated damages that equal the wages they failed to pay, and your attorney's fees. Here in South Florida, we also have some counties with wage theft ordinances that can even triple the amount you're owed. If your internship isn't what you thought it would be, have until the end of the statute of limitations (generally 2 years under the Fair Labor Standards Act) to wait to see if you get the job you thought you were earning. If you sue, you can sue on your own behalf and on behalf of all the other interns who didn't get paid.

Even if you sign a waiver saying you agree not to be paid, it won't hold up if the internship is really a job, so talk to an employment lawyer in your state about it.

Internships can get you college credits, contacts, community service hours for high school, and maybe even a paid job down the line. That's what the good ones are supposed to do for you. Just beware the ones that turn you into slave labor. Before you accept an internship, get a clear understanding of your job duties, whether you'll be paid, and what the employer expects of you.

If you aren't going to be doing something that puts you on your career path, turn it down. If you find out that it wasn't what you expected, get out of there.

Time is money. That's what they say in business. Make sure you get your money's worth out of your internship. If not, wouldn't you rather spend your summer taking classes, getting a paid job, or texting your friends?

If you have a terrific internship, great. I wish you the best. If not, talk to an employment lawyer about your rights.

Can My Employer Enforce A Noncompete When We Get Our Customers Through Bidding?

Noncompete laws vary from state to state, but whether in a state like Florida where noncompetes can frequently be enforced or in a state that is more employee-friendly, if an employer wants to enforce a noncompetition agreement, it will have to prove a legitimate interest to protect.

In Florida, the statute allowing noncompete agreements also says: “Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.”

Florida’s noncompete statute defines the term “legitimate business interest” to include: (1) trade secrets, (2) valuable confidential business or professional information that does not qualify as a trade secret, (3) substantial relationships with specific prospective or existing customers, clients or patients, (4) customer, patient or client goodwill, and (5) extraordinary or specialized training.

In one Florida case, the court said, “any competition by a former employee may well injure the business of the employer. An employer, however, cannot by contract restrain ordinary competition. In order for an employer to be entitled to protection, there must be special facts present over and above ordinary competition. These special facts must be such that without the covenant not to compete the employee would gain an unfair advantage in future competition with the employer.”

How does this apply if you get your customers through competitive bidding?

Courts have refused to enforce noncompetition agreements in Florida where the employer did not have substantial relationships with specific prospective or existing customers. If the customer is putting jobs out for bid, your employer may have a tough time showing it has substantial relationships with them. If they make purchases with whichever vendor is cheapest or makes the best offer, the courts may refuse to enforce your noncompete agreement. A request for a bid sent out publicly is pretty much like an ad in the yellow pages: anyone can respond, including your employer's competitors.

Where a court may draw the line is if you participated in preparing a bid for your employer, then use that confidential information to prepare your own bid for the same job undercutting them. That’s because you have valuable confidential business information about that bid. However, if you leave your employer and put in bids for jobs you weren’t involved with when you worked there, you may be okay.

Nothing in noncompete law is black and white. It’s pretty much all shades of gray. But employers try to enforce noncompetes that aren’t supported by a legitimate interest all the time. If you think your employer shouldn’t be able to enforce your noncompetition contract because customers are obtained through competitive bidding, talk to an employment lawyer who is familiar with noncompete agreements in your state to discuss your rights.

13 Things Every Teen Needs To Know About Workplace Rights

School’s out for summer! Or it will be soon, and many teens will start summer jobs or even their very first real job. Yet schools do little, if anything, to prepare teens for the realities of the workplace. I’m always shocked when I encounter teens whose parents drag them to me after they suffer workplace abuse with no idea they have any rights at all.

So, if you’re a teen entering the workplace or thinking of applying for a job, read this. If you’re a parent, friend or relative of a teen who is entering the workforce, please print this and show it to them.

Here are 13 things teens need to know about workplace rights that their school probably didn’t teach them:

1. Minimum Wage: Federal minimum wage is $7.25 per hour. However, there is something called the youth minimum wage, which means that for the first 90 calendar days of any new job you can be paid as little as $4.25 per hour if you are under 20. State minimum wages may be higher. Here in Florida, the minimum wage is $7.79. Tipped employees may be paid a minimum wage of $2.13/hour as long as their wages including tips equal at least the higher of the state and federal minimum wage. State minimum wages for tipped employees vary. In Florida, it’s $4.77/hour. More details about wages can be found here.

2. Hours: If you are under 16, under Federal law your work hours are limited. You can’t work during school hours at all, and you can’t work more than 3 hours on a school day, including Friday; more than 18 hours a week when school is in session; more than 8 hours a day when school is not in session; more than 40 hours a week when school is not in session; and before 7 a.m. or after 7 p.m. on any day, except from June 1st through Labor Day, when you can work until 9 p.m. Federal law doesn’t limit work hours for teens 16 or older, but your state laws may. For instance, Florida law says if you’re under 18 you can’t work during school hours (with exceptions), and that if you’re 16 or 17 you may only work up to 30 hours per week, not before 6:30 a.m. or later than 11 p.m. and for no more than 8 hours a day when school is scheduled the following day, and for no more than 6 consecutive days.

3. Breaks: Federal law doesn’t require any work breaks. However, many states require work breaks, especially for workers under 18. In Florida, workers under 18 are not allowed to work more than 4 consecutive hours without a 30 minute uninterrupted work break. For breaks of more than 20 minutes, employers don’t have to pay. Breaks 20 minutes and under are hours worked that need to be paid.

4. Sexual Harassment: If your boss, coworker, customer, vendor or potential boss is harassing you because of your gender or gender identity, that’s sexual harassment, and it’s illegal. This includes unwanted sexual advances, requests for sexual favors, offensive comments about men or women in general, off-color jokes, touching, and other harassment that is either so severe or so frequent that it alters the terms and conditions of your employment. A single offhand comment may not be sexual harassment, but a single incident that is severe could be. As a minor, you have added protection. Any adult sexually harassing you is probably committing a crime, and could be a sexual predator. It is really important that you read the company’s sexual harassment policy when you start working and write down where you are supposed to report it if it occurs. You don’t have to be afraid, and you should not let yourself become a victim. People you can and probably should report sexual harassment to are your Human Resources department at work and your parents. If you’ve been touched, then you may want to contact the police. If you see someone else being sexually harassed, you should report it. Harassers will keep doing it, and their behavior will get worse, unless an adult stops them.

5. Contracts: In most states, if you’re under 18 you can’t be bound by a contract, including an employment contract. You (or your parents) can void a contract you’ve signed while underage. However, once you turn 18, you probably can’t void it anymore. Employment contracts might have provisions saying you can’t work for a competitor for a year or two, waiving your right to a jury trial, confidentiality obligations, and other important clauses. If you are asked to sign a contract, always read it and keep a copy once you’ve signed. If you don’t understand it, talk to your parents or an employment lawyer in your state about it.

6. Internships: While many teens take unpaid internships for the summer, most employers get internships wrong. If your internship is not a real learning experience for you, then you probably have to be paid for the work you do. An internship is supposed to be training similar to that you would receive in a vocational school. Filing, stuffing envelopes, and answering phones should normally be paid. Internship assignments should build on each other so you develop more skills, similar to the way each chapter of a textbook builds on the other. You should be getting training that benefits you, and you should be getting more benefit than the company. If they can make money off what you're doing, or if you're saving them from having to pay another employee, you probably have to be paid.

7. At-will: If you live anywhere but Montana, your employment is probably at-will, meaning your employer can fire you for any reason or no reason at all (with some exceptions). They can fire you because they’re in a bad mood, because they didn’t like your shirt, or because you lipped off to them like you lip off to your parents. Exceptions that would make a firing illegal include firing due to discrimination, making a worker’s comp claim, and blowing the whistle on illegal activity of the company. If your boss tells you to do something that isn’t illegal (or sexual harassment), then do it. No eye-rolling, back-talk or attitude.

8. Social Media and Cell Phones: You are expected to work during work hours. That means no texting, emailing, calling, tweeting, instagraming, facebooking, downloading, or surfing at work, unless it’s work-related. If you check your texts, emails, or social media on a company computer, cell phone or other device, the company probably has the right to look at it. If you view or send inappropriate pictures, jokes, or videos, you can be fired for doing so. There is very little privacy in the workplace, and you have few rights. Assume you’re being watched at all times at work and you won’t go wrong. Oh, and remember all those party pics and embarrassing photos you posted before you started applying for work? Employers and potential employers can see them. You probably want to check your social media pages and pull down anything you can that might be inappropriate for an employer to see.

9. Human Resources: If your employer is big enough, you probably have someone who is designated as the Human Resources person or a whole department called “Human Resources.” It may be referred to as HR. This is the place to go for information about work rules, to report sexual harassment or discrimination, and you’ll probably have to go there on your first day to fill out a stack of forms. While they can be very helpful if you have questions or concerns, they aren’t your buddies. Human Resources represents your employer, not you. They aren’t your mom or your best friend, so don’t go to them with every petty complaint, confess you did something wrong, or tell them about the wild party you went to over the weekend. Keep it professional.

10. Discrimination: Discrimination against you for being you isn’t illegal. However, discrimination and harassment due to race, sex, sexual identity, national origin, disability, religion, color, pregnancy and genetic information are. In some states, there are more categories of illegal discrimination. For instance, in Florida it’s illegal to discriminate against you because you’re too young or because of marital status. Whether sexual orientation is a protected category depends on your state and local law. No federal law bars sexual orientation discrimination.

11. Bullying: While your school might have zero tolerance for bullying, your workplace may be a bullying free-for-all. No federal or state law exists that prohibits workplace bullying. However, workplace bullies are very much like school bullies: they focus on the weak and the different. If you need to complain about a bully, make sure you do it in a way that’s protected. If the bully is picking on the weak, are they weak because of a disability, pregnancy, or age? If they’re picking on the different, is the difference based on race, national origin, age, or religion? If you report illegal discrimination, the law protects you from retaliation. If you report bullying, no law protects you.

12. Dangerous Work: It is every employer’s duty to maintain a safe workplace. If you think your workplace is unsafe, you can contact the Occupational Safety and Health Administration (OSHA) to report dangerous conditions and get more information. Certain jobs are deemed too hazardous for teens under 18 to do. A plain English description of the 17 jobs considered too dangerous for minors is here. There’s a different list for agricultural work that applies to workers under 16.

13. What Kind Of Work You Can Do: Depending on your age, there may be limits on the type of work you can do. If you are under 14, you can work, but your options are limited. You can deliver newspapers, babysit, act or perform, work as a homeworker gathering evergreens and making evergreen wreaths, or work for a business owned by your parents as long as it’s not mining, manufacturing or one of the occupations designated as hazardous. If you are 14 or 15, you can do things like retail, lifeguarding, running errands, creative work, computer work, clean-up and yard work that doesn’t use dangerous equipment, some food service and other restaurant work, some grocery work, loading and unloading, and even do some work in sawmills and wood shops. We’re talking non-manufacturing and non-hazardous jobs only. If you are 16 or 17, you can do any job that isn’t labeled as hazardous.

The Department of Labor has a website where you can get more information about employment laws that apply to teens. An interactive advisor about federal law may be found here.

Of course, my book Stand Up For Yourself Without Getting Fired can help anyone new to the workplace since it covers how to handle workplace crises and issues from the interview and application, to your first day and that giant stack of papers, to workplace disputes, to promotions, to termination, and even post-termination.