The Criminalization Of Employment Law

A new indictment in a trade secret case, where a former employee opened his own business, made me think about something that's been bothering me for awhile, namely, the criminalization of employment law. I did a piece about this a couple years ago called Your Ex-Boss Wants You In Jail. It's gotten worse. Not only are we sending employees to jail for what used to be civil offenses, but the criminalization is completely one-sided. Employees blink wrong, go to jail. Employers can't get tossed in the hoosegow no matter how bad they misbehave.

Here's what The Dallas Morning News says about the case:

The indictment states that Tezock was an employee of Voltaix for about 16 months until September 30, 2005, when he was scheduled to be let go from the company.

During the last month of his employment he was allowed to complete a project from home, working with proprietary company files on his personal computer. It was during this time that the district attorney’s office alleges Tezock made copies of a secret recipe for germane, a valuable chemical used in semiconductors and solar technology.

Speaking through an attorney, Tezock denied the charge that he had stolen plans to produce germane.

A letter released by Tezock’s legal counsel said that he had applied and was granted a patent for his method of germane production in 2009. According to Tezock, Voltaix’s response at that time was to try and re-hire him.

Daniel Therings, a former attorney for Metaloids, said that thereafter Voltaix brought a civil action against the company and Tezock in 2010. Court documents filed in Texas’ fifth district court of appeals show the company asked the court to stop Metoloids from producing germane.

While Therings said the case is still caught up in appeals, he said the court sided with Metaloids. A news brief on the company’s website said Voltaix was ordered to pay the cost of further litigation.

He got a patent for it, but it's their trade secret? Let's assume that this isn't as ridiculous as it sounds. So an employee who uses alleged trade secrets to open his own business is a criminal, despite antitrust laws saying competition is one of the biggest tenets of capitalism. Indeed you can look at all the arguments againstnoncompetes in Massachusetts to see why letting employees compete with former employers is a good thing. Okay, taking trade secrets is bad, if it really happened. So sue the employee for any damages. But a crime?

One employee was sentenced to four years in prison for trade secret violations. Another employee is sentenced to 97 months. There are trade secret convictions and more trade secret convictions.

Then there employees getting convicted for exceeding their authority to access information on computers at work. One guy was sentenced to 41 months under the Computer Fraud and Abuse Act and his sentence was finally reversed on appeal. CFAA prosecutions have been all the rage among employers seeking to toss employees in jail. Yet if you look at the civil cases on CFAA, you can see just how broad this law is and how much employees are at risk if they click the wrong link at work.

 Employers Skate

Then look at the employer side. No criminalization there. Despite attempts to criminalize wage theft, all we get are local ordinances and attempts by Republicans to make even the wage theft ordinances illegal. Wage theft is rampant, and it costs us all money. Several Florida counties have passed ordinances to beef up efforts to go after employers who steal employee wages. They should be throwing them in jail, but no, can’t do that. Heck, Broward County couldn't even use the term "wage theft" in its ordinance because employer groups threw a hissy fit.

Look at employers who violate antitrust laws, which have criminal penalties, by the way, by forcing low level employees who can’t affordto fight to sign noncompete agreements for the sole purpose of preventing competition. Are they being prosecuted for making employees virtual indentured servants? No way. What about eBay, Apple, Google and othersconspiring to violate antitrust laws with no-poach hiring agreements? Criminal prosecutions? Nope. Slap on the wrist.

Egypt just made sexual harassment a crime. We can’t even get federal laws passed making sexual harassment of unpaid interns illegal. That’s right. Our kids have no legal protection against sexual harassment anywhere but Oregon and NY.

Groping teenagers and young women? Not even a civil offense. Stealing employee wages? Not a crime. But starting a competing business against your former employer? That’s a jailing offense.

Seizing Employee Property?

Now employers want to pass a law allowing courts to seize the property of former employees who dare to compete. The Fourth Amendment be damned. How can you fight a case if you don't have the proof? You can't, and that's exactly what employers want. They can shut down employees who dare to compete without lifting a finger. Where's the outrage? Why isn't hell being raised at the prospect of this ridiculous new law?

This makes me mad as hell. Does it make you mad too? Then start raising hell with your legislators. Tell them to stop the one-sided criminalization of employment law. And tell them to say no to seizure of employee property for alleged trade secret violations.

Let's not give up employee rights so easily.

Fox Rothschild Responds To My Post About EEOC Mediators

In all fairness, I wanted to provide an update. I posted Friday that Management-Side Firm Whines Because EEOC Mediators Are Doing Their Jobs. The piece was about a claim made in a survey that EEOC mediators are biased against employers. Fox Rothschild posted the survey in their blog, then posted a guest piece by the author of the survey. I strongly disagreed with this assertion of bias, and explained why.

I then let Richard Cohen, the blog's author, know that I had posted the piece so he could respond. Here's what he said:

Good post. But neither my blog or firm have taken or take that position, or claim to take that position. The blog simply reported, I think faithfully, comments from both sides, without comment from me and without my taking sides. Generally speaking, that's my blog's general tenor.

And Ms. Archer has no association with my firm.

Although your post is likely good PR for us, nonetheless it is inaccurate.

Rich Cohen

In additional communications, Mr. Cohen advised that neither his firm nor he have taken a position on the topic, and that his blog expresses his views, not the firms. I’m delighted to hear that it is not Fox Rothschild’s or Mr. Cohen's position that EEOC mediators are unfairly biased toward employees. I certainly got a different impression from reading their blog posts. It's still concerning to hear these claims made about EEOC mediation, which I think is a worthwhile process.

If a well-respected firm like Fox Rothschild publicizes a study in their blog (and it is in the firm's official blog with Mr. Cohen listed as the author) that claims bias without questioning that study, or stating that their experiences with EEOC mediation were different, I think agreement with the study was implied. If the firm then posts guest a blog reasserting that bias without any positive comment about Fox Rothschild's or Mr. Cohen's own EEOC mediation experiences, I think readers may reasonably assume they agree with their guest's post.

I wonder if their clients and other employers now think that there really is a bias against employers in EEOC mediation. I wonder if employers will hesitate to agree to utilize EEOC's free process, despite the fact that a judge will order them to engage in mediation they'll have to pay for if they are sued. Will Fox Rothschild or Mr. Cohen take an official position as to whether they believe EEOC mediations are biased against employers? Will other management-side firms and lawyers stand up for EEOC?

Stay tuned.

Management-Side Firm Whines Because EEOC Mediators Are Doing Their Jobs

The law firm Fox Rothschild, LLP has posted a series of blog posts where they complain bitterly about EEOC mediators. They claim the mediators are unfair because they have the nerve (the noive!) to tell employers that EEOC could enter a cause finding in their case. The whining began with a survey by Merrily Archer where she asked management-side folks who participated in EEOC mediations whether or not mediators mentioned "cause" findings as a possibility. She found that they did so in 73.7% of cases. In 70% of cases, mediators mentioned to employers that EEOC could possibly bring a suit against the employer if they found cause.

Other lawyers weighed in and said that EEOC mediations are no different from other employment mediations, in that mediators do mention possible "cause" findings and other worst-case scenarios when trying to bring about settlements. But Fox Rothschild is now claiming that EEOC mediators should not do what every other mediator does.

They make three arguments for why EEOC mediators should be banned from mentioning the dread but rare "cause" finding:

1. Unlike Private Mediators (or Magistrate Judges), EEOC Mediators Represent a Federal Agency that Wields Broad Enforcement Authority and Prosecutorial Discretion
2. Unlike Private Mediators (or even Magistrate Judges), EEOC Mediators Represent a Federal Agency that Measures Its "Efficacy" by Its Employer Collections
3. Unlike Private Mediators (or even Magistrate Judges), MOST EEOC Mediators are Not Lawyers 

So let me get this straight. Other mediators mention worst-case scenarios and that's okay. But EEOC mediators should paint a rosy pro-employer picture because they work for EEOC? All this whining fails to mention that EEOC mediators do not communicate with the investigators. They aren't allowed to discuss what happened at mediation. They can't have any impact on the enforcement decision one way or the other. And as to "efficacy," I'm willing to be that what they measure are the number of settlements, not the amount. As to their not being lawyers, mediators aren't supposed to give legal advice or make legal pronouncements. They don't have to be lawyers. Many EEOC mediators were investigators and know better than anyone how the system works.

What is completely missing from all this management-side moaning and groaning is any input from the employee side about what EEOC mediators say when meeting with employees. Mediators are supposed to test both sides with strong questions and doomsday scenarios. EEOC mediators point out to my clients that they could lose their case, that most EEOC cases end up with an "unable to determine" finding (some have even said a "no-cause" finding, even though those no longer exist), that litigation is long and drawn-out and expensive, and that sometimes a losing employee could end up paying fees and costs to the employer. It's the lawyer's job, not the mediator's, to discuss how likely each of these scenarios is with the client and whether settlement is a viable option.

I'd also like to point out my pet peeve from the employee side with EEOC mediators: employers always get the best room. At least here in Miami, EEOC has large, comfy conference rooms with candy and water on the tables, sometimes coffee, where the mediation starts. In every single situation I've encountered, after the initial openings and discussions, when it breaks into caucus, the employee is moved to a different room. That room used to be a tiny and freezing room with a tiny table and no refreshments. Now that they've moved to a different building, employees and their counsel don't even get a table to work on. There's a tiny room with a sofa and some chairs and side tables, and no place to put a laptop or spread out case files.

Does this send a message to employers that they are in disfavor? I think not. I think it sends a terrible message to employees that they are second-class citizens in EEOC mediation, whether it's true or not. I think EEOC mediators should alternate between moving the employer and the employee to the tiny room so it's fair. In a couple of cases, I've insisted upon it and been met with resistance, shock and surprise that I dared shake the status quo.

I'm a huge fan of the EEOC mediation process and EEOC mediators. In Miami at least, they're some of the best mediators I've encountered. That doesn't mean I think they are biased in favor of employees. If they were, they couldn't settle cases. A good mediator tests and pushes both sides, and that's what EEOC mediators do. It would be a travesty if EEOC mediators bowed to management-side pressures by not testing and pushing employers by telling them the worst-case possibilities that maybe their lawyers don't want them to hear.

I challenge Fox Rothschild to survey employee-side firms to find out what worst-case scenarios EEOC mediators are sharing with employees. They won't do it, because it will completely repudiate their claim that EEOC mediators are somehow unfair to employers.

So quit your whining, Fox Rothschild, and enjoy your comfortable large conference room and refreshments while your opponent is stuffed into a tiny room down the hall.

My Readers Change The World! ObamaCare COBRA Gap Fixed

I wrote a few weeks ago about The Little-Known ObamaCare COBRA Catch-22. I thought this issue was so important that I asked AOL Jobs readers for help. I asked you to sign a petition I started to alert the President to this issue. I asked you to tell the President to close the gap. And you came through.

Not only did you sign the petition, but some of you took action to help. Members of the National Employment Lawyers association contacted the Department of Labor to ask for a fix. Forbes found out about this issue and wrote a piece about it. And it worked.

Read my article at AOL Jobs to find out how you can switch from COBRA to ACA until July 1 and how COBRA notices are changing. Thanks so much to everyone who helped with this important change.

6 Ways Same-Sex Marriage Will Affect Florida Employees

There are multiple lawsuits pending in Florida challenging the state's ban on same-sex marriage. There's one in Key West, one in Miami, one in federal court in Tallahassee, and there are probably some more out there. It's almost inevitable that the ban on gay marriage will be overturned here soon.

So why does an employment lawyer care about gay marriage? Here are just some of the laws that will affect Florida employees and employers once gay couples can marry:

1. Florida Civil Rights Act: The Florida statute against discrimination covers marital status. And I'm betting plenty of backwards Florida employers will discriminate when their gay employees get married.
2. Family and Medical Leave Act: Finally, Florida gay couples will be able to take leave to care for a sick spouse.
3. Benefits: Gay spouses will have to be included in employee benefit plans such as insurance and pension. That includes recognizing a same-sex marriage as a qualifying event to enroll a spouse.
4. Tax filing status: Married gay employees will be able to change the number of deductions they claim.
5. Privilege: Right now, I have to boot same-sex partners from confidential attorney-client meetings because there's no privilege between same-sex partners. Once they're married, I can finally include them. I hate, hate, hate having to inform gay couples how backward Florida law is on this, so gay marriage will be a welcome relief.
6. Confidentiality provisions: Many severance and other employment contracts have confidentiality provisions that prohibit telling anyone but immediate family or spouse. Married gay couples will finally be able to share this vital information with partners.

I'm keeping my fingers crossed that same-sex marriage will soon be allowed in Florida. I'm absolutely, 100% for it. I look forward to a time when we look back on these times like we look back on school integration - with shame for the years of discrimination, pride that Americans eventually do the right thing and nostalgia.

Who Do I Complain To About Discrimination If I'm HR?

An AOL Jobs reader asked me:

I am a minority female HR professional who has been working in the field for 18 years. I have faced race based discrimination, and sexual harassment continuously during my career. I'm often hired into a management role based on my degree, experience and my SHRM certifications, only to be hidden and given no real responsibilities. Over the years I have learned to identify quickly organizations that offer "Token" positions hoping to fill a quota. These orgs provide no training, support or valid work responsibilities in order to build a case of poor performance.

Unfortunately because I report to HR, following protocol on any harassment claim is nearly impossible. HR staff is notorious for creating the same hostile environments they are hired to protect. HR professionals rarely file complaints for fear of black listing tactics and back door references provided to other HR professionals.

As an employment lawyer have you seen any HR to HR complaints, and do you have any suggestions in regard to HR professionals protecting themselves against the crimes of their peers?

You'd be surprised how many times I have HR people come to me with employment law issues. I have to say, I love representing HR people because you know where the bodies are buried. Employers that don't treat HR professionals like gold are asking for trouble.

So, where does the HR representative go when they're the victim of illegal harassment? For the steps I'd recommend taking, read my column at AOL Jobs.

70% Of Employers Think Your Social Media Posts Are Their Business

A well-respected management-side firm (and sometimes opposing counsel of mine, I should add), Proskauer, released a study they did on social media this week, and I found it quite disturbing from the employee-side point of view. Their key finding:

While nearly 90 percent of companies use social media for business purposes and almost half allow employees to use social media for non-business activities, more than 70 percent of employers report having to take disciplinary action against employees for misuse (a significant uptick from 35 percent in 2012).

While the management-side firm took the results of this study to mean that employers need to crack down more on employee social media use, I had a different reaction, which was:

Holy cow! Seventy percent of employers not only monitor employee social media but are disciplining employees for expressing incorrect views. 

I have to ask, what the hell are we coming to when employers think they have the right to monitor and control employees' opinions expressed on their own time in their own blogs, Facebook pages or other social media. What kinds of things are employers monitoring and cracking down on? Here's what Proskauer says:

• Misuse of confidential information (80 percent)
• Misrepresenting the views of the business (71 percent)
• Inappropriate non-business use (67 percent)
• Disparaging remarks about the business or employees (64 percent)
• Harassment (64 percent)

 Wait, what? Misrepresenting the views of the business? Disparaging remarks about the business or employees? Wow. The nerve of employees having views different from those of their employers or disparaging an abusive boss.

Fortunately, employees who are being subjected to this Big Employer behavior have the NLRB in their court.  NLRB protects most non-supervisory non-government employees from many overbroad social media policys. Some of their recent crackdowns include:

Tossing a disclaimer requirement: Kroger had the brilliant idea of requiring employees to post a disclaimer whenever their posts related to work. "The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of The Kroger Co. family of stores."  The NLRB judge tossed the disclaimer requirement with this comment:

An ever increasing amount of social, political, and personal communication, increasingly by people of all ages, takes place online.… A rule that required Kroger employees, who are identified as such, to mouth a disclaimer whenever they conversed with others about “work-related information,” while standing on a street corner, picket line, in church, in a union meeting, or in their home, would neve r— ever — withstand scrutiny. As with traditional, in-person communication, this required online disclaimer has no significant legitimate justification and is, indeed, burdensome to the point that it would have a tendency to chill legitimate section 7 speech.

 Tossing an anti-negativity policy: Hills and Dales General Hospital decided all employees must be happy, or at least not express unhappiness. A NLRB judge tossed policies with this language: “We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other,”  “We will represent Hills & Dales in the community in a positive and professional manner in every opportunity,” and“We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.” They stopped short of, "You will be assimilated."

Making an employer rescind policy against discussing executives, customers, suppliers: Valero had to toss its social media policy to satisfy the NLRB. The offending policy about discussing executives, et al. was this:

Policy 1:  Protecting the confidential information of our employees, customers, partners and suppliers is also important.  Do not mention them, including Valero executives, in social media without their permission, and make sure you don't disclose items such as sensitive personal information of others or details related to Valero's business with its customers.

Making an employer rescind policy against abusive, embarrassing posts: Valero also had to toss this policy:

Policy 2:  Do not post anything that is false, misleading, obscene, defamatory, profane, discriminatory, libelous, threatening, harassing, abusive, hateful or embarassing to another person or entity.  Make sure to respect others' privacy.

If you think your employer's social media policy is over the top, or if you're being disciplined for social media use, contact the NLRB or talk to an employment lawyer in your state about your rights.

For more on employer invasion of social media privacy, check out my articles Can Your Employer Demand Your Social Media Passwords and Ten New (And Legal) Ways Your Employer Is Spying On You.