My 2018 Predictions

Okay, okay. So I've been promising these for awhile. It has taken me a bit to wrap my head around things that have happened so far since the presidential election. The good news is that the GOP remains the party that couldn't shoot straight (no pun intended). So far, little has been done against employees on the legislative front. It's mostly been done by executive order.

So what can we expect for the rest of 2018? Here are my predictions:

Sexual harassment: Despite all the brouhaha on #MeToo and sexual harassment, no new legislation will pass and we'll see some judicial and jury decisions penalizing sexual harassment victims. There will be backlash, and lots of it.

Agcncy paralysis: With cuts to EEOC, DOJ and NLRB, these agencies will develop backlogs and go into paralysis. Employees can expect little help from the feds this year. The one hopeful thing I see is that EEOC mediations are still going strong. The EEOC mediators, at least down here, are some of the best I've ever seen, government or private. We will still see cases resolved in EEOC mediations unless the mediation program is cut too.

Guns at work: Thanks to high school students down here, we may start to see states revisiting those idiotic guns at work laws that have been all the rage. On the other hand, the orange one is pressing to arm teachers in classrooms. What could possibly go wrong? I think we will actually see some baby steps on common sense gun control for the first time in this country in a long time. It will take awhile, probably years, but there will probably ultimately be a drop in workplace shootings if these laws pass.

Immigration raids: We've already started to see employers being raided to round up illegal immigrants and arrest the bosses for hiring them. We're also seeing traffic stops to round up immigrants. That will continue. Employers  and employees beware.

Antitrust: The Department of Justice has announced it will start cracking down on no-poach agreements between employers. That's a ray of sunshine in what will be an awful year for employees. I would caution employers who threaten to sue competitors for hiring former employees, then quietly settle with a no-poach agreement. The government will come after you as well as my colleagues and me for these illegal arrangements.

LGBT rights: The courts will continue to battle over whether or not Title VII'a sex discrimination prohibition covers sexual orientation. I don't think the Supremes will get to the issue this year, so we'll have a split among circuits on this. So far, the 2nd and 7th Circuits say it's covered. The 11th, which covers my home state of Florida, says no.

Marijuana crackdowns: I've been predicting for awhile that the feds will start cracking down on legal marijuana use. It's still illegal on the federal level, no matter what your state says. That handy-dandy card allowing you to buy will be a nice tool for the feds to use to claim probable cause to search your house. They'll probably go after growers and dispensaries first, but if people don't rise up and resist, they'll come after individuals next. I'm guessing the crackdown this year will be on the businesses, not on individuals.

Overall, this won't be a good year for employee rights. But then, you knew that already. Resistance is not futile.

My #1 Prediction For 2018: More Shootings. Here's How We Can Stop Them.

I promised that my next post would be my employment law predictions for 2018. Frankly, I've been putting it off because it's so depressing. However, in light of yesterday's shootings only a few miles from my home, at Marjory Stoneman Douglas High School, I had to weigh in. Not only will there be more school shootings this year, but there will be more workplace shootings. That is a 100% certainty.

I'm so tired of thoughts and prayers I could scream. Everyone I know has been personally affected by yesterday's shooting in some way. Thankfully, my daughters are safe. Many can't say the same. It's time to stand up and take action to stop this madness.

Adding to my rage and sadness, I actually knew Marjory Stoneman Douglas. She was a fellow Wellesley alum (obviously different years). I went with her to the White House when she was awarded the Medal of Freedom for her tireless work saving the Everglades. While we were there, I got to sit with her during the signing of the Brady Bill. She was so proud that Bill Clinton was doing something to help with gun control. She would be mortified that her name will now be used in the same breath as Columbine and Sandy Hook every time there is a new school shooting. I take personal umbrage that her memory is now tarnished with this horror.

But what can we do? Well, throwing up our hands hasn't worked. We are the only country this is happening in. The other countries that don't have these incidents have reasonable gun control. We have the most guns of any country. If having more guns makes you more safe, why are we the only place this is happening.

Here is my plan to slow down and substantially reduce the mass shootings in this country:

1. Assault Weapons Ban: From 1994 to 2004, we had an assault weapons ban. Mass shootings went down. When the GOP refused to renew it, they shot up. This is an easy and obvious partial solution to the problem.
2. Background Checks For Gun Shows: The Brady Bill is a law requiring background checks before gun purchases, but the GOP working with the NRA has managed to work in so many loopholes that it is almost worthless. According to the Brady Campaign, "experts estimate that 1 out of 5 gun sales occur in 'no questions asked' transactions that often take place over the Internet or at gun shows where, in most states, background checks are not required. This dangerous loophole puts thousands and thousands of guns in the hands of dangerous people like domestic abusers, felons and the dangerously mentally ill." There is a proposed law to close this loophole. It should be passed.
3. Include Social Media In Background Checks: We need to do background checks for guns as thorougly as employers do for potential employment. The kid who did this horrific shooting posted multiple threats to shoot people on social media. Part of every background check for potential gun ownership should include mandatory disclosure of all social media sites and handles. Failure to disclose should be a crime in itself.
4. Include Domest Violence Arrests in Background Checks: Domestic violence history is a red flag for potential mass shooters. If a potential gun buyer has such an arrest, even if not convicted, it should trigger a deeper background check including interviews with neighbors, employers, friends, and family, as well as the doctors who treated the victim. A conviction should result in automatic denial.
5. Provide Due Process for Gun Purchase Denials: If someone is denied a gun purchase based on a social media posting, let them appeal to an administrative judge or panel with no filing fee so that they can explain their side and try to get the decision reversed. That should allay concerns that people can be denied for unjust reasons.
6. Deny Guns To Those On The Terrorist Watch List: Seems obvious, but the GOP won't pass it. Same due process to appeal a denial as above so if someone is wrongly on the list, they can seek justice.
7. Buy Back Assault Weapons: How do we get the assault weapons off the streets? How about making owners an offer they can't refuse? Offer to buy them back at an outrageous price. How about $10,000 for your weapon? That would be a good investment of tax dollars. No, it wouldn't get them all off the streets, but I bet it would get a lot.
8. Confiscate Guns Of Criminals: If someone lies on their background check to obtain the gun, or is arrested for domestic violence or other violent crime, it should be instant probable cause to confiscate their registered weapons and search their homes, offices and vehicles for non-registered ones. The weapons should be held in custody until the person is found not guilty. In order to get the weapons back, a new background check should be done. If they are kept due to a conviction or failure of the background check, fair market value should be paid. There should be a right to a due process hearing on this as well.
9. Rise Up and Protest: I suggest a Million Parent March on Tallahassee as a start. The Florida legislature is in session, and much gun regulation has to be done on the state level. Let's start working state by state to get dangerous guns out of the hands of dangerous people.

These are my thoughts on the issue. Some of the above has been the subject of proposed legislation, some has not. Until we take action to address this problem, we will have more of our children and employees slaughtered. Thoughts and prayers are not enough.

How I Did On My 2017 Predictions

Last year my predictions were all gloom and doom. After all, Republicans have control of the Presidency, the House, the Senate and the Supreme Court. Plus they are appointing federal judges in droves after holding up those appointments for years under President Obama. I expected a quick rain of disaster for employees. I was only partially wrong. It's been more like a series of showers.

Here's how my predictions for 2017 turned out:

Executive orders: I predicted the scrubbing of Obama-era executive orders, including some pro-employee regulations and the protections for employees of federal contractors. I wasn't wrong. President Trump reversed every pro-employee Obama action he could with the stroke of a pen.

Obamacare gone: They tried and tried and failed. Now they're trying slow strangulation. Despite shortening the enrollment period, refusing to advertise and cutting subsidies, 8.7 million Americans enrolled for 2018.

Marijuana jailings: I was called a fear-mongerer after writing about what will happen if the Feds start to enforce marijuana laws. It didn't happen in 2017, but Jeff Sessions just announced his plans to start enforcing the law. So I was a few days late.

LGBT rights curtailed: We started to see this early in 2017. A bill to allow LGBT discrimination on religious grounds was introduced and Trump promised to sign it. Fortunately, it stalled. They did overturn President Obama's order on LGBT discrimination regarding federal contractors. The President attempted to block transgender military members from serving but have so far been blocked in court. We saw anti-gay legislation pass in Mississippi, Puerto Rico, Texas, There will be a true red/blue dichotomy. Florida remained unfriendly to the LGBT community as expected, failing to pass a corporate-supported law to protect LGBT workers against discrimination.

Muslim discrimination: We saw Trump attempting to keep even permanent residents who happen to be Muslim from re-entering the country after traveling for funerals and education. Fortunately, the travel ban was blocked until December, when the Supreme Court allowed the latest version to take effect. We haven't seen much fallout yet. I predicted that blatant acts of discrimination by the Administration would embolden racists who feel they have the right to discriminate against brown people and that this would be a horrible, horrible year to be Muslim. This was a year of increased assaults against Muslims. The number of anti-Muslim groups tripled. It was a rough year.

Sex discrimination: I predicted active attempts to ban abortion rights for women. The Trump Administration sought and failed to block an abortion for a teen immigrant. They passed a law allowing states to refuse to fund doctors who perform abortions. The House passed a bill that would criminalize abortions after 20 weeks. I predicted that attempts to reverse sexual harassment and other protections for women, would not happen much in 2017. Thankfully, the #MeToo movement made any such attempts impossible, for now.

EEOC changes priorities: EEOC started early in 2017 backing down on lawsuits involving transgender rights. However, it was the Justice Department, not EEOC, that took an active stance that Title VII does not protect against LGBT discrimination.  The Supreme Court refused to decide the issue. I predicted that EEOC would reverse its position that banning hire of those with criminal records has a disparate impact on race/national origin, but the guidance is still in effect.

No help with overtime: I predicted that President Obama's attempt to expand overtime and update antique standards for overtime will be overturned. It was.

Non-Christians: I predicted that there would be a push to marginalize any protections for anyone who is not Christian. So far, other than with Muslims, that hasn't happened. Yet. Indeed, even the War on Christmas folks were oddly quiet this year.

What we got in 2017 quite a bit of were a boatload of judicial and administration appointments of anti-gay, anti-woman, anti-anyone-but-Christian appointees that will cause long-term negative outcomes. Fortunately, the chaotic White House kept the apocalypse somewhat at bay.

The good news is that many states were proactive in passing pro-employee laws such as ban-the-box, raising the minimum wage, paid sick leave, salary history, predictive scheduling and other pro-employee measures. Florida did nothing to help its workers. As usual.

Next up - my predictions for 2018.

If The Office Is Closed Due To A Blizzard, Do I Get Paid?

Now is usually when I run my posts about how I did on my predictions from last year, but with the snowicane bombarding the Northeast and even Florida, I thought I'd better re-run this ever-popular and necessary piece.

Whether you’re entitled to be paid when the office is closed depends on whether you are “exempt” salaried or not. Just being salaried doesn’t necessarily mean you aren’t entitled to overtime. It’s possible to be salaried and still non-exempt from the requirements of the Fair Labor Standards Act. Many employers misclassify employees as exempt to avoid paying overtime. If you work more than forty hours per week, it’s better to be non-exempt. But in the case of weather and emergency closings, it’s probably better to be exempt.

Exempt employees: If you’re exempt and you worked any portion of the work week, you have to be paid your entire salary, whether or not the office is closed for a natural disaster such as hurricane, snow, tornado, or flood. Further, Department of Labor regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” This would include natural disasters, so if you are able to work after a storm then you must be paid even if you didn’t work any portion of the week. If you can’t get there on time or have to leave early due to the flooding but the office is open, they can’t deduct for any partial days you worked.

Vacation time and PTO: Your employer can deduct from your vacation time or PTO for the time taken. However, if you have no accrued vacation or PTO time available, they still can’t deduct from your pay if you’re exempt.

Non-exempt employees: If you are non-exempt, then your employer doesn’t have to pay for the time the office is closed. However, if your company takes deductions and you’re a non-exempt salaried employee it may affect the way overtime is calculated.

Who Is Exempt?: You’re not exempt unless you fall into very specific categories, such as executives, administrative employees, or learned professionals. Plus, your job duties must fall within those categories, not just your title. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This is one of those rare times when it's better to be exempt, so it's the one time you can be glad that President Obama's overtime expansion was gutted.

Pay For Reporting To Work: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. Florida has no such requirement and neither does Texas, (so maybe it’s a good time to start complaining to your legislators).

Disaster Unemployment Benefits: If you live in in an area declared a disaster area, you may qualify for disaster unemployment assistance. I don't think any areas have been declared yet, but here's where to start searchingto see if you can get disaster unemployment assistance.

If you’re hit or have already been hit with a big storm, get in touch with your supervisor or manager as soon as possible to find out whether or not you’re expected to be at work. If you can’t get in touch with anyone, then only go in if it’s safe for you to do so.

Aftermath of #MeToo? I Predict Ugly Backlash

In the wake of Al Franken's resignation over eight women's allegations of forced open-mouthed kissing, butt grabbing and boob groping, there has been much angst. Many of my fellow liberal Democrats are beginning to understand what many HR folks have had to go through when the top salesperson, popular CEO or much-loved manager is accused of sexual harassment. The overwhelming temptation is to deny, attack the accuser, circle the wagons and protect the harasser.

I have to admit, that was my first instinct as the initial accusations came up against Sen. Franken. At first, I thought this must be someone paid off by right-wing interests to discredit a strong liberal voice. But then another came forward. And another. One is a former Democratic aide. No, he's not a rapist like some of the harassers we've heard about lately. He didn't drop his pants. But a U.S. Senator forcing women to kiss him while he shoves his tongue down their throats and grabbing butts during photo ops while in office is bad enough.

I've been saying it for 31 years and will keep saying it: if you don't stop a sexual harasser, their behavior accelerates and spreads. If Democrats did a wink-wink at Franken's accusations and did nothing to punish him, he would assume he could get away with such behavior and continue, plus others would assume they could do the same. Sure, Franken is the much-beloved manager, the top salesperson, the popular CEO. There was talk of running him for President.

But failure to act would perpetuate the culture of sexual harassment that exists in this country. That's how we got here in the first place.

Democrats and liberals are mad. These are the folks who would normally be clamoring for tougher sexual harassment laws in the wake of #MeToo. I predict that the loss of Franken and Conyers, plus some major Democratic fundraisers, will mean that little is proposed to protect sexual harassment victims. And I wouldn't expect any such activity from Republicans in any instance, since the Republican leadership seems only to care about women if they are a fetus or carrying a fetus.

It's Already Getting Ugly Out There

I've heard ugly things about the victims and the women who demanded Franken resign already:

• "Stupid bit##es. They'll regret this." Of course we will. We'll suffer the loss, the same as the company suffers when the top salesperson or the CEO is let go. But we should be mad at Franken for failing to stop his boorish comedy routine when he became a Senator, not the accusers, and not the women in Congress who demanded he step down. Do you honestly think the women in the Senate didn't think about losing the possibility of taking back the Senate before they acted? They're on the front lines. Of course they did. But they also had to be thinking that Franken had lost any moral authority on women's issues or other issues of character if he stayed.
• "It's a matter of degree. What he did wasn't as bad as Weinstein." I've heard this about Franken and about much-loved Garrison Keillor. Keillor claims he was fired because he only accidentally touched a woman's bare back and I call bull****. For us to believe that, we have to assume that the head of Minnesota Public Radio is a moron willing to sacrifice their biggest moneymaker over nonsense. I don't believe that for a second. I guarantee that Keillor has a rock-solid contract saying he can only be fired for cause, so if he really believes what he's saying I guess we'll hear about it in court. But I suspect we won't because then the real allegations will come out publicly. As for Franken, no, he isn't as bad as Weinstein. So maybe this isn't fatal to his career. Maybe if he got some counseling and sexual harassment training he could apologize to the women and voters and say he will do better. Maybe they will give him a second chance. I might if I were them. But I wouldn't keep him as a salesperson and I don't think he should go consequence-free as a Senator.
• "There's no proof. It's just her word." Yep. Welcome to my world. I face this every time I bring a sexual harassment claim. Most harassers aren't stupid enough to leave witnesses or evidence. But here's the thing. The women who come to me are usually terrified. They're crying in my office. They suspect that, if they report the harassment, they'll face shunning, mockery, retaliation, loss of their career. And they aren't wrong. In one case, I'm friends with a very liberal man who heard about an accusation that caused a man in his industry to resign. His response? "I would never take a meeting with her. I wouldn't trust her." This was a case where the company's lawyers investigated her allegations. Do you honestly think the company's lawyers didn't do everything they could to discredit her and save their guy? If the company's lawyers are against him, something really serious must have happened. Yet this woman's career is probably damaged irreparably. Men will Mike Pence her and refuse to meet with her alone. They will assume she's a liar, although she did not sue or seek money based on her accusation.
• "These women are liars. They're just looking for publicity." Oh, sure. Everyone wants publicity that will get them threatened, shunned, avoided and mocked. Because they all say how well things went for Anita Hill and Monica Lewinsky. Most of these women came forward despite being terrified and are not seeking any money. If they are still within the statute of limitations, they should seek money because that's the only thing corporations understand.

I Predict Backlash

I predict backlash. These are just some of the more printable comments from liberals that I've seen. If liberals have turned on the #MeToo movement, backlash is inevitable.

Here are some of the backlash consequences I predict:

• Judges and juries: They will punish sexual harassment victims even worse than usual. The victims will be greeted with more suspicion and skepticism and even worse case law than what exists today. The raised consciousness that everyone seems to think will happen, the presumption of truthfulness of the accuser, will fail to come to fruition. 
• The victims: Many of the women who openly made accusations will be shunned and avoided. Their careers will take a step backward and maybe halt altogether. While we've had a brief period where women got brave and openly made accusations, that will roll way back as the consequences become apparent.
• The law: No improvements will be made. We won't get a separate law on sexual harassment that makes the standards and penalties clear. We'll be stuck with cases interpreting Title VII and state laws that are difficult to navigate. There will be a push to roll back sexual harassment protections in the next few years, and the public may buy it. Little or nothing will be done to protect victims against retaliation.
• The harassers: Some who were outed will manage to redeem themselves and come back in their industries. Some will continue and get worse because nobody dared to report them. The culture of sexual harassment will continue in this country for at least another decade.

I hope I'm wrong. I hope that we can all come together and work on some sensible improvements to the existing sexual harassment laws. I hope we will be in a new era of believing the victims who come forward to accuse sexual harassers.  I hope we crush the culture of sexual harassment and move forward toward true equality for women.

But I'm not wrong.

HR And Management-Side Lawyers Need To Change If We Are To End Sexual Harassment Culture

Someone recently asked me what could be done to change what is clearly a culture of sexual harassment in this country. Not just how do we enforce the law, but what do we have to do above and beyond the law to end the harassment epidemic. It's a tough question, but I do have some thoughts.

The first and largest problem is that the victims are afraid to come forward. And there's good reason for that. In my experience, many, if not most, sexual harassment victims who report it suffer some form of retaliation. They are disbelieved, mocked, shunned, ostracized, transferred, demoted, fired or shunted off to never never land where they have no advancement opportunities.

Harassers, on the other hand, are defended and protected. If someone is moved, it is usually the victim.

I blame HR for this, but it's not the fault of hardworking and well-meaning HR people so much as a combination of the "complainer-as-enemy" mentality perpetuated by a large portion of the management-side bar and some really bad cases interpreting the law on sexual harassment. HR folks represent the company, after all. They are trained that their job is to protect the company at all costs. But if we look at the cost in morale, punitive damages, and loss of quality staff that sexual harassers cost employers, then rooting out sexual harassment should be considered a key part of protecting the company.

The result of "complainer-as-enemy" corporate culture is that, when a complaint is made, the tendency is to do everything possible to discredit and disbelieve the complainer and circle the wagons around the harasser. That needs to change.

Here is what I would do if I had a magic wand to change the way the management-side bar and HR handle sexual harassment complaints:

Start from the premise that the complainer is telling the truth. As we've learned from the many women who came forward years later to tell stories, complaining is terrifying. Most sexual harassment victims had to get up a lot of courage to even come to me, much less go to HR. Yet the Supreme Court says they have to complain if they are to win a sexual harassment case. By the time they get to the point of reporting it, you should assume they are telling the truth. Treat them with respect. It took a lot of courage for them to come to you.

Contact former employees. Now that you are assuming the victim is telling the truth, your investigation should be different. Act like the reporter who investigated the Kevin Spacey sexual harassment allegations and see if you can find others who were harassed. Contact former employees who worked with the alleged harasser and see if they will admit to being victimized. These are the folks most likely to have the courage to admit the truth. Most current employees will lie to save their jobs. Investigations right now start from the premise that she or he is lying and try to prove that. If you flip the investigation and try to prove she or he is telling the truth, you might actually uncover some sexual harassment.

Create a truly safe space for reporting. It's almost impossible to keep the identy of the victim secret. Coworkers' natural tendency is to shun and avoid the victim because they don't want to be associated with someone who is radioactive. You have to shut this down. Do not allow coworkers to treat the victim differently. Retaliation should be dealt with on a zero tolerance basis. Even if you do disbelieve the person who complained, you must protect them. Otherwise, you create a culture of fear and nobody else will report sexual harassment.

Punish the harasser, not the victim. I don't care if the harasser is your superstar sales person, the CEO or the founder of the company. The victim should never be the one transferred. If the harasser gets away with it, they will accelerate their behavior. Once you are on notice that they have a propensity to sexually harass, the company will be liable for punitive damages when he does it again. And a culture of sexual harassment spreads and turns the company into a frat house a la Fox. If you allow the harasser to continue harassing, you deserve to get hit with a megabucks punitive damages judgment.

Stop crushing the victim. In the complainer-as-enemy culture that exists right now on the mangement side, victims are put through hell. Management digs up sexual history, performance issues, problems with former employers, every bit of dirt they can to tarnish the victim. When you do that, you create a culture of sexual harassment that wastes valuable productive time at work and brings us to the place we are today. Is it any wonder victims assume that this behavior is expected and they must tolerate it? Why are we surprised when victims don't report it when they see what happens to those that do?

Reward the person who steps up to stop a harasser: Whether it be the victim or a concerned coworker or supervisor, if you investigate and find out that there really is a sexual harasser in the company, you should reward the person who reported it instead of punishing them. This is a brave person who stepped up at the risk of their job. They should promoted and given a bonus, not put on the do-not-promote list or fired.

All of the above, and the fact that it won't happen, is why I predict that once the media attention dies down we'll go back to the way things were before, and sexual harassment will continue to be the norm rather than the exception. Please prove me wrong.

Insurance Open Enrollment is Now Through Dec. 15. Be Persistent. Spread the Word.

The open enrollment period for the Affordable Care Act/ObamaCare started yesterday and continues through December 15. You may not have heard about it because the Trump Administration cut advertising by 90%. So please tell a friend. Send the URL to this article to anyone you know who needs health insurance.

Here are some things you need to know.

The site will shut down periodically: This is why I said be persistent. During open enrollment, the Trump Administration plans to shut down the website for registration for 12 hours nearly every Sunday. Don't give up. They're trying to discourage you from enrolling. Don't let them win.

Enroll at healthcare.gov: Here's the URL to enroll for insurance or change your plan.

If you lose your job: Once you lose insurance because you lost your job, you don't need to be in the open enrollment period. You'll have a special enrollment period that gives you an opportunity to get coverage other than COBRA if you want it.

Subsidies not cut for everyone: Even though the Trump Administration cut the subsidies available, causing many premiums to skyrocket, subsidies are still available for some, but only during open enrollment. If your income is 100% to 250% of the federal poverty level, you still get subsidies. Those income levels for 2018 are:

• $12,060 to $30,150 for an individual
• $24,600 to $61,500 for a family of four

Open enrollment is cut in half: Last year, open enrollment was 3 months. This year, it's only 6 weeks. Don't wait.

It hasn't been repealed: Although surveys show 10% of Americans already think the Affordable Care Act was repealed, it wasn't. Yet. However, 3.5 million more people are uninsured since Trump took over.

Help is available: To get free help, call 1-800-318-2596, or go to http://localhelp.healthcare.govor https://connector.getcoveredamerica.org. There's a Facebook page. A list of state working groups for signup is here. FAQs here. ACA signup project is here. Get America Covered is here. A toolkit to organize an open enrollment assistance group is here.

Just be aware that President Trump is doing everything he can to keep you from being insured. Fight to keep your healthcare. It's a matter of life and death.