Can You Be Fired For Supporting A Political Candidate?

In my home state of Florida (why is it always Florida?), a CEO sent an email to all of his thousands of employees saying that, if Obama is elected, they would likely lose their jobs. He didn't threaten to fire them for supporting Obama, but did make it clear that, should Obama win, his employees would suffer dire consequences. Then a Wisconsin employer followed suit. The Koch Brothers did the same.

It turns out that Mitt Romney personally instructed CEOs to use this tactic with their workers.

So, have the CEOs crossed a line? Probably not. At least yet. Here are some things employers can't do during this political season:

Limit Discussions On Which Candidates Would Improve Working Conditions: While employers can certainly prohibit general political discussions and political campaigning at work, the National Labor Relations Act says that private employers cannot prohibit discussions about workplace conditions. Therefore, if employees discuss the employer's lengthy email about why a candidate is better for them as workers, then the employer can't fire employees who voice that the employer's email is full of misleading and incorrect information and that the other candidate is very clearly the better choice for working Americans. On the other hand, employers can force you, as a captive audience, to attend meetings and listen to one-sided political pitches on behalf of candidates unless you live in Oregon, which has the Worker Freedom Act. New Jersey has a similar law.

Discriminate Based On Political Affiliation: Not all states have laws prohibiting this, but many do. States that don't have such laws may have county or city ordinances that specifically prohibit political affiliation discrimination.The Civil Service Reform Act of 1978 prohibits political affiliation discrimination against federal employees.

Discriminate Based on Race, Sex, Religion, National Origin, Etc.: If your employer limits political discussions by some, but not all employees, then they may run afoul of discrimination laws. Much of today's partisan politics is about religion, for instance. Women's issues are hot topics in this political season. The presidential candidates are of two different races and religions. If your employer wants only one point of view expressed in your private sector job, the First Amendment won't help you but discrimination laws might.

Prohibit Labor Union Insignia: While employers can prohibit wearing of most political buttons, shirts and other campaign items, it can't prohibit union insignia. They could probably, for instance, prohibit a button that says, "Obama," but not one that says, "Teamsters For Obama."

Reimburse You For Political Contributions: If your employer says you should write a check to a candidate and agrees to reimburse you for it, they are breaking the law and could even go to jail.

Prohibit Time Off to Vote: Most states, but not all, require employers to let you take time off to vote.


State Laws That Might Help

In some states, these employers' threats may be illegal. For instance, in Michigan, the laws prohibit direct or indirect threats against employees for the purpose of influencing their vote. It also prohibits tracking of political activity.

In Ohio, West Virginia, Pennsylvania and Kentucky, employers are prohibited from posting or handing out notices threatening to shut down or lay off workers if a particular candidate is elected.

In Oregon, it's illegal to threaten loss of employment in order to influence the way someone votes.

In Washington State, it's illegal to retaliate against employees for failing to support a candidate, ballot position or political party.

Some states, like California, Colorado, New York, North Dakota and Louisiana, say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns.

In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people."

In general, remember that the First Amendment doesn't protect you in a non-government workplace. Be careful out there, and don't forget to vote.

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

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

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

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

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

But there ought to be a law!

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

What do you do in the meantime?

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

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

Why Did the Lawyer Put This in My Severance Agreement?: The Cooperation Clause

This continues my series of posts deconstructing the legal gobbeldy-goop in employment agreements. Today I'll talk about a clause I often see in severance agreements: the cooperation clause. It may look something like this:

Employee agrees to cooperate with Employer in connection with any legal matters, if so requested by the Company, including agreeing to make himself available at the Employer's request to assist with matters requiring the provision of information and/or testimony.

Yikes! My clients never like this and neither do I. And really, what good do most employers think is going to come from having an employee they axed testify on their behalf? My first response is usually to ask that this be taken out of the agreement. However, management-side attorneys love these clauses, so here's what I usually do that will work.

First, I ask for language something like this:

Such cooperation shall be arranged so as not to interfere with Employee's employment and/or business.

That way I don't have to worry about the jerk employer who says the employee has to come in during the key sales meeting, the peak busy time, or their first day at a new job. If the employer wants cooperation, they can arrange it after hours or on a weekend so the employee doesn't get fired from their new job. If they want a deposition, same thing. Depositions can be scheduled to work around times that will get the employee fired from their new job. Without this language, the employer can say, "Tough tookies," when the employee cries foul.

The other language I ask for is that the employee be paid for their time. While they probably can't be paid for their time testifying, I want to make sure my client doesn't become an indentured servant forced to help their former employer respond to complicated discovery requests or submit to endless deposition preparation sessions. Even if it's a deposition, the employee should be compensated for their expenses, such as parking fees, gas mileage, and other out of pocket expenses incurred in this cooperation.

Forcing an ex-employee to work for free probably violates the Fair Labor Standards Act in any event, so even if payment isn't in this clause, an employer who goes too far with their demands might run afoul of the Department of Labor.

Why Did The Lawyer Put This In My Settlement Agreement?: Tax Indemnification

This will continue my series of posts about deconstructing the legalese in employment contracts. This week I'll discuss some language I frequently see in severance or settlement agreements when at least some of the money being paid isn't having taxes withheld. The clause will look something like this:

Employer makes no representation as to the taxability of the amounts paid to Employee. Employee agrees to pay federal or state taxes, if any, which are required by law to be paid by Employee with respect to this settlement. Moreover, Employee agrees to indemnify Employer and hold it harmless from any interest, taxes or penalties assessed against it by any governmental agency as a result of Employee's non-payment of taxes on any amounts paid to Employee or Employee's attorney under the terms of this Agreement.

The reason the employer wants this language is that most employment law settlements are for back wages, future lost wages, or severance, which are wages. Wages must have taxes withheld and the employer has to pay its share of employment taxes on them. If the IRS should come back later and claim more (or all) of it should have been wages, the employer wants the employee to agree they'll pay both the employee's and the employer's share of employment taxes on this.

I'm unusual in the way I request settlement money be paid to clients. I usually ask that the employee's portion be paid as wages. I have a couple reasons for this. First of all, no matter how many times I tell the employee to set aside about 1/3 of the money in a CD that comes due on April 1 so they can pay their taxes, it's too tempting to spend the money. I've had too many people call me crying in April that they can't pay their taxes. Second, if IRS should determine that the money should have been wages, my clients can't afford to pay their employer's share of taxes on top of theirs. It's a risk that I usually don't recommend.

Now, let's go back to this tax clause. I used to not object to it being added as is. If my client asks that some of the money be set aside as something other than wages, they should be willing to take the risk that they got it wrong. (On the other hand, if the employer insists that some portion of it be designated compensatory damages or emotional distress damages so they can save money, I insist they take this language out). I say I used to agree because I actually had one employer, after the fact, argue that this clause meant they could withhold the employee's federal income tax and employment taxes, then not pay them in, plus they said they didn't have to pay in their share of employment taxes on the wages amount.

It's probably an only-in-South-Florida thing, but still, this kind of jerkish behavior means I have to change the language in the future. Here's what I now ask employers to add to this clause:

This provision shall not apply to Employer's obligation to pay in amounts withheld and its share of employment taxes on the amount paid pursuant to paragraph ___.

The blank, of course, is filled with the subparagraph that sets out the amount being paid to the employee as wages.

When the attorney's fees are being paid, I insist they be paid separately because they aren't wages. Under the Civil Rights Tax Fairness Act, which used to be part of the mostly-rejected Civil Rights Tax Relief Act, they are still income to both the client and my firm. However, the client should be able to take an above-the-line deduction on their tax return (whatever the heck that is - ask your accountant) so it comes out as a wash.

Basically, there's no way to structure an employment law settlement so any portion of it isn't taxable, at least that I've ever heard of. There have been efforts to pass the Civil Rights Tax Relief Act for decades, all of which have failed. This law would make emotional distress damages tax-free. If you think it's wrong to tax emotional distress damages, which makes it harder to settle employment cases for both employers and employees, talk to your member of Congress.

In the meantime, expect to see these tax indemnification clauses in your agreements, and beware unscrupulous employers who try to use them to force you to pay their share of taxes.

Employment Lawyers Want to Know: Debate Questions for the Candidates

I've shared my questions for the Presidential and Vice Presidential candidates this week. Four of my fellow employment lawyers did the same thing, and I thought I'd give you some of the highlights.

Questions for President Obama

Eric Meyer asked:

Protection of women's rights in the workplace seems to have been a priority for you since taking office. In 2009, you signed the Lily Ledbetter Fair Pay Act, which effects the statute of limitations for filing an equal-pay lawsuit, into law. The Patient Protection and Affordable Care Act, signed into law in 2010, includes workplace breastfeeding protections.

Should you win reelection, what further changes would you make to workplace laws?

Jon Hyman wanted to know:

Four years ago, you campaigned on a promise to help working families. You promised to expand the FMLA to cover smaller employers, and promised that employers would be required to provide paid sick days to all employees. Yet, four years later, your track record on these issues is spotty at best. The only accomplishment to which you can point in the Lilly Ledbetter Fair Pay Act. What can you say to working families to earn their trust that the next four years will be different?

Robin Shea asked:

We already have Title VII and the Equal Pay Act, both of which give remedies to women if they're discriminated against with respect to compensation, as well as your own Lilly Ledbetter Fair Pay Act. (Title VII and the Ledbetter Act apply to pay discrimination based on race, national origin, etc., as well.) An expansion of the existing law is likely to make employers more vulnerable to lawsuits and class action settlement demands in an already bad economy. Given that, what evidence do you have that any significant part of the current sex-based disparity in pay is caused by discrimination against women, as opposed to voluntary work-life choices made by women and men? In light of studies showing that the so-called "gender pay gap" almost disappears when one controls for voluntary choices, why is this legislation necessary and couldn't it actually have the perverse effect of limiting opportunities for women?

Daniel Schwartz asked several questions, including:

As President, you have barred discrimination in your administration on the basis of sexual orientation and gender identity. Given your actions in your administration, why has there been no progress in Congress on passage of the Employment Non-Discrimination Act, a proposed bill that would bar employment discrimination on the basis of sexual orientation? Moreover, do you support that bill anymore? Your campaign website has no reference to that bill.

Questions for Mitt Romney

Daniel Schwartz asked several questions, including:

On your campaign website,you state that the “first step in improving labor policy will be to ensure that our labor laws create a stable and level playing field on which businesses can operate. As they hire, businesses should not have to worry that a politicized federal agency will rewrite the rules of the employment game without warning and without regard for the law.” Yet, the NLRB is — by its nature — a political agency that shifts its agenda depending on who the President is. Under George W. Bush, it became more pro-business and under Obama, it became more pro-union. Are you suggesting that you would try to de-politicize the NLRB? If so, how? And if not, aren’t the changes you propose simply adding to the political nature of the NLRB?

Eric Meyer asked:

As you know, the Family Medical and Leave Act provides job-security protections for qualifying employees with serious health conditions, loved ones with serious health conditions, or who need time off to care for a newborn. Presently pending in Congress are bills to expand the scope of the FMLA. For example, the Domestic Violence Leave Act would provide leave for workers to address domestic violence, sexual assault, or stalking and their effects. The Family and Medical Leave Inclusion Act would amend the FMLA to permit leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling, grandchild, or grandparent who has a serious health condition.

These efforts would broaden the law. But what if you had the power to repeal the FMLA altogether. Would you do it? And why?

Robin Shea asked:

Actually, several related questions: Do you see the proposed Paycheck Fairness Act and the Employment Non-Discrimination Act, both endorsed by President Obama and the Democratic Party, as hindrances to your party's goals of reining in government regulation and restoring predictability to employers? In the same vein, do you support repeal or scaling back of any of the employment legislation enacted during the Obama and George W. Bush administrations, such the Americans with Disabilities Act Amendments Act or the Lilly Ledbetter Fair Pay Act? How, if at all, do you intend to stop the encroachment of the federal government into the non-union employment relationship?

Jon Hyman wanted to know:

You are on record opposing the Employment Non-Discrimination Act, a bill that would make it illegal under federal law for employers to discriminate on the basis of sexual orientation or gender identity. Yet, you have also publicly stated that you support anti-discrimination and equal rights for all.

Which is it? Are you in favor of equal rights for all, or you do believe that it permissible for employers to deny rights to individuals based on their sexual orientation or their gender identity? And, if the Employment Non-Discrimination Act came across your desk in the Oval Office, would you sign it or veto it?

Questions for Vice President Biden


Robin Shea wanted to know:

Do you see any inherent conflict between the ENDA (assuming it is interpreted this way) and the rights under Title VII of employees to exercise and express their religious beliefs without discrimination, and to religious accommodation? If not, why not? If so, how do you propose to enforce the ENDA while at the same time protecting employees whose religious beliefs may not be completely aligned with the ENDA?

Daniel Schwartz asked two questions, including:

Why do you support the Paycheck Fairness Act? And why is that bill needed in light of all the other laws already on the books preventing pay discrimination, including the Equal Pay Act?

Eric Meyer asked:

The White House touts the Lilly Ledbetter Fair Pay Restoration Act as the first piece of legislation -- employment-law or otherwise -- signed into law during President Obama's first term. The President touts fair pay and equal rights, but there hasn't been a second significant employment law passed yet.

Jon Hyman wanted to know:

Mr. Vice President, Governor Romney has accused your administration of supporting a partisan, pro union National Labor Relations Board. Historically, you have been outspoken of your support of the Employee Free Choice Act, which would provide employees the right to form a labor union without the benefit of a secret ballot election. At a Labor Day rally in Detroit earlier this month, you publicly stated that organized labor is one of the reasons why American is recovering. The American business community would not-so-respectfully disagree with you, and believe that activist federal agencies and labor unions are dangerously holding us back.

What would you say to business owners of all sizes who believe that your administration’s labor policies have stifled their ability to operate in today’s economic climate?

Why hasn't there been a second?

Questions for Paul Ryan

Jon Hyman wanted to know this:

You cite Ayn Rand as your inspiration for getting involved in politics. You even gave copies of her novel Atlas Shrugged as Christmas gifts to your staff. Among other philosophies, Atlas Shrugged endorses the belief that a society's best hope rests on adopting a system of pure laissez-faire government. Philosophically, you would seem opposed to government economic intrusions, yet you voted in favor of both the TARP bank bailout and the auto industry bailout. How do you reconcile your claim to be a fiscal conservative with your pro-regulatory Congressional votes on these two key federal bailouts?

Robin Shea asked:

Granted that a right to organize is implicit in right-to-work and secret ballot laws, and granted that the current National Labor Relations Board and public-sector unions have gone overboard during the current administration, do you believe generally in the right of private-sector workers to organize and collectively bargain? If not, do think that any alternatives are needed to ensure that private-sector workers are protected from exploitation and abuse? If so, what would those alternatives be?

Daniel Schwartz had a couple of questions, including:

Your record on the Employment Non-discrimination Act is, to be blunt, muddy at best. You appear to have once voted for passage of the Act, only after trying to prevent it from coming to the floor. Then in 2010, you are quoted as saying you would support the bill, but only if it didn’t include protections for transgendered Americans. Do you support this bill or a similar federal bill banning discrimination against employees based on his or her sexual orientation? If not, why?

Eric Meyer wanted to know:

Your campaign website claims (here) that "unions drive up costs and introduce rigidities that harm competitiveness and frustrate innovation." Both you and Mitt Romney have been critical of the Employee Free Choice Act, a bill that would have made it easier for employees to unionize. Indeed, you once received a 7% approval rating with the AFL-CIO.

Do you feel that unions today provide any benefit in America's workplace?

And, if given the opportunity, would you repeal the National Labor Relations Act altogether?

There you have it: some questions from management and employee-side employment lawyers for the candidates. If you go to the actual blogs, my fellow attorneys have provided some links and/or discussion of their questions. Now, if only we could get the candidates to answer . . .

Debate Questions for Paul Ryan From an Employment Lawyer

This is part of our series on what questions employment law practitioners would ask of the candidates in the debates. Today, I propose some questions I'd ask Paul Ryan.

During your acceptance speech at the Republican National Convention, you talked about an automobile plant in your district. You said this, " Right there at that plant, candidate Obama said: 'I believe that if our government is there to support you … this plant will be here for another hundred years.' That’s what he said in 2008.Well, as it turned out, that plant didn’t last another year. It is locked up and empty to this day. And that’s how it is in so many towns today, where the recovery that was promised is nowhere in sight." The truth is that the plant announced it was closing and actually closed while George Bush was still President. Why on Earth would you try to put the blame for that plant's closing on President Obama, and why should we believe anything else you say if you're willing to mislead us on something so easily proven to be incorrect?

OK, maybe that question won't be asked in the debate. But seriously, that was egregious. Lawyers know the jury instruction that says if a witness lies about one thing, you don't have to believe anything they say. I think he should have to answer for such a blatantly misleading statement.

How about asking this one:

You initially voted against extending unemployment benefits in 2010, saying it would add to the deficit. Then you voted for extending unemployment benefits when they were coupled with an extension of the Bush tax cuts. Is it only bad to help the unemployed when you're not simultaneously helping the very rich?

I know. I'll never be asked to moderate one of the debates with an attitude like that.

Your family's company relies a lot on union labor. In 2009, in stump speech in your district, you said, “A lot of conservatives just think unions are nothing but bad. That's just not true.... They're people who are just trying to make their lives better, people trying to collectively negotiate a better standard of living for themselves. What the heck is wrong with that?" You've been a supporter of pro-labor bills like the Davis-Bacon Act, which keeps federally funded construction projects from undercutting prevailing union wages. On the other hand, you supported Governor Scott Walker in his fight against Wisconsin's public sector unions and supported cuts to education funding that caused teacher layoffs. If you are elected Vice President, will you support labor unions or will you work with people like Governor Walker to destroy unions?

 At this point, they're probably escorting me forcibly out the auditorium door. Before I leave, I manage to yell out this one:

You voted for the failed 2007 attempt to pass the Employment Non-Discrimination Act, sometimes called ENDA, to protect employees against discrimination based on sexual orientation. Do you still think it should be illegal to discriminate against gays and lesbians?

It's a question that puts him in a no-win situation. His party opposes any legislation expanding gay rights. His support of ENDA was the right thing to do, but it won't win him friends in his party. If he says he's changed his mind, he loses any goodwill he built up with the gay community with his vote.

Debate Questions For Joe Biden From An Employment Attorney

This is part of the continuing series of debate questions being posted by employee- and management-side employment lawyers. These are my questions for Vice President Joe Biden.

Your opponents have supported efforts to roll back union rights and the strength of unions. You said this to the AFL-CIO: "We don't see the value of collective bargaining, we see the absolute positive necessity of collective bargaining. Let's get something straight: The only people who have the capacity -- organizational capacity and muscle -- to keep, as they say, the barbarians from the gate, is organized labor. And make no mistake about it, the guys on the other team get it. They know if they cripple labor, the gate is open, man. The gate is wide open. And we know that too." Why do you think it's important to have strong labor unions in America and what do you think your opponents propose that will harm working Americans?

Then I'd ask:

You said this about your opponents on Labor Day: "Ladies and gentlemen, you, organized labor, are one of the reasons why this country is coming back. Folks, let me make something clear and say it to the press: America is better off today than they left us when they left." How are working Americans better off than they were under George W. Bush?

I might want to know this (from all the candidates, really):

More and more states are passing laws to allow employees to bring their guns to work. They can't be fired for keeping weapons in their vehicles or for telling coworkers they've done so. What kind of legislation, if any, do you think we should have in this country to protect unarmed workers from coworkers who "go postal"?

I'd also want to ask:

President Obama signed the "VOW to Hire Heroes Act" into law on November 21, 2011. The Returning Heroes Tax Credit provides businesses that hire unemployed veterans a maximum credit of $5,600 per veteran, and the Wounded Warriors Tax Credit offers businesses that hire veterans with service-connected disabilities a maximum credit of $9,600 per veteran. This law also fixed a loophole in the law to make sure it is illegal to harass service members at work due to their military service. Why has your administration thought it was important to help veterans and military members get back to work and stay at work?