Can I Tape My Employer If I Have Poor Memory?

I got this question on an old but popular post, I Secretly Taped My Boss and Now I Want to Sue:

I have been telling my supervisor for months that I have a memory problem. He knew that I was working with a neurologist. I recorded a meeting with him where I anticipated finding out what my new job duties would be. I live in MD and was terminated for making the recording, even through I told them why I did it.

Thisguyneedshelp

Hi Thisguyneedshelp. As I stated in my prior post, Maryland is an all-party consent state, meaning that your employer must consent before you are allowed to record them. In your situation, I think withholding consent might violate the Americans With Disabilities Act (ADA).

If your memory problem is caused by a disability, such as Alzheimer's, Parkinson's, or another medical or mental condition that substantially limits a daily life activity, then you are allowed to request a reasonable accommodation for your condition. If you told your employer you need to tape conversations so you can remember them, that's a request for a reasonable accommodation under the ADA.

If you've been taping conversations with their knowledge, then all of a sudden they fired you for doing so, then firing you for doing so may violate the ADA.

If, however, you secretly taped the conversation and they found out about it, you may be out of luck.

Here's what I suggest for people who want to tape conversations in an all-party consent state. Put the tape recorder on the desk in front of the person with whom you are speaking. Turn it on and say, "I'd like to tape this conversation. Is that okay?" If they say yes, then tape away. If they say no, turn it off. You could add, for future employers, "I'd like to tape this conversation to accommodate my memory issues. Is that okay?"

If you were fired for taping without the employer's consent, then Maryland, like every state except Montana, is an at-will state. That means you can be fired for any reason or no reason at all (with exceptions). You can't be fired because of a disability, race, age, sex, religion, national origin, or other protected status. You can't be fired because you blew the whistle on illegal activity of the company, made a worker's comp claim, or took FMLA leave. Otherwise, they can fire you for a bad reason or no reason.

I'd suggest talking to an employment lawyer in your state about your rights.

Can I Sue a Lying Coworker?

I'm answering areader questions today.

Hello Donna,

I was fired last year based on lies a co-worker made to our employer. My former employer is now enforcing a non compete I was forced to sign prior to employment that doesn't allow me to work in my professional field anywhere the company does business, I have had numerous job offers resented due to the non compete. Plus they have stated the process to sue me in federal court without any proof what so ever as there is nothing to prove. I won a transfer to my home state, and am awaiting a court date to dealing with these false charges.

What can I do about the co-worker that lied and caused my termination? Slander suit or civil? I am still unemployed, broke and now facing foreclosure along with mounting stress of all this I have gain 20 pounds, don't sleep very well. Your thoughts on counter suing employer or co-worker?

Thanks Unemployable 

Hi Unemployable. I'm sorry this is happening to you. I get lots of questions about filing defamation (slander/libel) claims against coworkers and supervisors. In general, it's usually not worth the hassle. First of all, your coworker probably isn't wealthy, and even if they are, they may not be collectable. You might get a judgment for a gazillion dollars against them, but so what? If you can't collect, what's the point?

Now, let's talk a bit about slander and libel. You would need to prove a false statement of fact, not opinion. Examples of false statements of fact: "Joe stole $100 from the cash register;" "Jane is a child molester;" "Artie was arrested for embezzlement." Examples of opinion that probably will never be defamation: "Joe didn't fit in;" "We decided to go a different way;" "Artie's performance wasn't up to our high standards." In between, there are lots of shades of gray. Here in Florida, I find the courts absolutely hate defamation cases by employees. You'll want to check with an employment lawyer in your state about your rights if you decide to pursue something against your coworker.

Next, you'll have to prove the statement was "published" to a third party. All this means is it was said to someone besides you. Here's where it gets tricky. A corporation is a "person" for most legal purposes. If a corporation publishes a statement to itself, that's probably not defamation. If a coworker reports something to her boss, HR puts something in your file, or your supervisor announces your discipline to the corporate Board, that's probably not a publication.

You'll also encounter the sticky issue of "privilege." Some statements are going to be covered by an "absolute privilege," meaning that they'll never be defamatory. These can include statements made in a legal proceeding like a deposition, court testimony or an unemployment hearing. Statements made to police are likely privileged. Some privileged statements are under a "qualified privilege," meaning you can overcome the privilege if you show that the statements were made with malice or were published beyond the circle of people who needed to know. Examples of qualified privilege would be statements made to an employer in a sexual harassment investigation and statements made to a government agency as part of an investigation. In some states, job references are somewhat privileged. However, if an employer deliberately gives out false facts about you, that's probably still defamation.

Whether your company will be liable for your coworker's statements will depend on whether those statements were  made within the scope of that person's employment. For instance, if an HR person gave false information to a job reference based on what is in your file, the company may be liable. It's difficult to get courts to hold a company liable for an intentional wrongdoing of one of its employees. Mostly, they'll say it was done for some individual purpose and not a company purpose, so was outside the scope of employment. If the company president or someone who can bind the company by their actions defames you, the company may also be liable.

Since the statements by your coworker cost you a job, you'll certainly be able to prove damages. If you think you have a defamation case, definitely talk to an employment lawyer in your state.

More Answers To Your Noncompete Questions

I'm still getting lots of questions on noncompete agreements. Here are some of your questions, and my answers:

Bounced Checks, Unpaid Overtime, and Selling Company

Hi Donna
I work in jackson Wyoming in decorative concrete work I signed a non compete with my employer and he has been dropping the ball by bouncing payroll checks not only to me but to vendors and so on. I just found out he is trying to sell the company and a lot of his clients are asking me to do their future jobs what do i do or can i do to be out of this mess. Oh and he has decided to not pay overtime and bank our hours even though we refused because we never collect them all.

DJ

Hi DJ. I'm not sure about Wyoming, but in many states failing to pay all wages due, which would include those bounced checks and overtime, would be a defense to enforcement of your noncompete agreement. You should talk to an employment lawyer in your state about collecting what's owed to you, and about how to defend against your noncompete. To collect those unpaid wages, you could also contact the Department of Labor for help. Just remember that they are a very busy government agency.

As to the company being sold, it will depend on your state law and what your noncompete agreement says. If the agreement says the company can assign the agreement, or that it applies to their successors, then you may be bound even if the company is sold. Again, this will depend on your state's law. In Florida, companies didn't used to be able to assign noncompetes. Now they can.

The other issue about a sold company will be whether they continue in your line of work. If a company abandons a line of business, a geographic area, or specific customers, they have no legitimate interest to protect in keeping you from working in those lines, areas or for those customers.

Company Moved

Question: I signed a non compete in Kansas, and my company moved to Missouri. Is this enforceable now?

Private Investigator

Hi Private Investigator. As I mentioned to DJ above, it will depend on the facts. If your contract says that you can't compete in Kansas and the company no longer does business in Kansas, they'll have a hard time showing they have a legitimate interest to protect. However, if they do business nationwide and continue servicing Kansas customers, then the agreement may still be enforceable. Depending on your state law, you may have a defense if you're fired without cause or laid off due to the move. Here in Florida, that would not be a defense.

Sign Or Be Fired, Then Hours Cut

Hey, I live in ohio and im currenlty under a non compete for demolition and asbestos abatement. I basically forced to sign when he said "sign or I cant employ u any longer" since then my hours have dropped off the charts only receiving 16-24 hours a week making 13 $/hr, clearerly not enought to provide for my 16 month old son! I feel like I could some how get out of the non comepte due to the lack of hours provided but I dont know.

Chris

 Hi Chris. Some states don't allow employers to coerce you into signing by saying, "Sign or be fired." They require additional consideration, such as pay increase or promotion. However, states like Florida say that continued employment is sufficient consideration for a noncompete. Pretty crappy, huh?

In your case, however, it sounds like your employer knew they were going to cut your hours when they demanded you sign. That sounds like fraud in the inducement to me. It might be a defense to enforcement of your noncompete agreement. You should talk to an employment lawyer in your state about your rights.

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.