My Employment Law Predictions For 2019

Honestly, I thought about skipping predictions this year, because what's happening with the president is unpredictable. However, I'll take my best shot. Here are my predictions for employment law in 2019:

• Florida might be more pro-employee: Although our new governor was a Trump pick, I don't think that's the end of the story. He's already fighting to lift some legislatively-imposed restrictions on medical marijuana. His new Chief of Staff was also Charlie Crist's Chief. You might remember that Charlie, although a Republican at the time, was actually pretty good for employees in Florida. I'm thinking we might get some pleasantly pro-employee action out of Tallahassee this year. The legislature is still gruesomely anti-employee though. So we'll see if the new governor can make a difference for working people.
• More anti-employee executive orders: One thing that Trump has been consistent with is his attacks on working people. He'll continue his anti-employee agenda.
• More anti-employee federal agencies: All the federal agencies that are supposed to be helping working people, like OSHA, DOJ, EEOC, and NLRB have become more anti-employee under Trump. That will continue.
• Anti-employee Supreme Court: The Supremes will be pretty consistently anti-employee. They already upheld the transgender military ban. It will only get worse.
• Pro-employee legislation in the House: The House will pass multiple pro-employee laws. The Senate won't. Even if something miraculously got through, it wouldn't be signed. Sad.
• Legal marijuana will spread: Despite repeated promises from the Trumpian DOJ to crack down, more states will legalize marijuana. Some will even protect employees from being fired for legal use, or from being fired for approved medical use.
• Federal employee slavery will end: Eventually, the shutdown will end and the enforced work-without-pay of federal employees will end. Will this cause federal employee unions to demand more protections? Will people leave the federal government in droves knowing this could happen again and again? Very possibly.

Overall, we'll have a bad year for employees, with some possible hope in Florida for a change. Vote better folks.

No, Constructive Discharge Doesn't Equal A Lawsuit

Every once in awhile someone tells me they were constructively discharged, so they want to sue. They're surprised when I say, "For what?" That's because there’s no such cause of action or claim. Just because you were constructively discharged, that doesn't automatically equal a lawsuit any more than being fired equals a lawsuit.

Constructive discharge is where an employee quits work for good cause. If you are constructively discharged, the courts treat it as if you were fired. This means some claims that you were illegally fired (worker's compensation retaliation, retaliation for complaining about discrimination, whistleblower retaliation, adverse action discrimination claims, to name a few) are still allowed even though you quit if you’re constructively discharged. If you would have a case against your employer had they fired you under the same circumstances, then you will also probably have a case against them if a court finds you were constructively discharged.

Most courts are reluctant to find an employee was constructively discharged. The standard is usually that no reasonable employee would have tolerated the conditions of employment. For instance, I’ve seen sexual harassment cases as extreme as rape that weren’t found to have been so intolerable that the circumstances constituted constructive discharge by the employer.

For unemployment purposes, if the company cuts your pay, changes your job duties in a major way, changes your shift, transfers you to a new location, that may be enough to be deemed cause attributable to the employer. But you’d better be sure before you quit if you want to make sure you’ll qualify for unemployment. Sometimes the unemployment office will have a website or have someone you can call to get information. Otherwise, you’ll probably want to be sure of your rights before you quit.

In general I recommend against quitting until you have another job lined up. It’s easier to get a job when you have a job. But if your working conditions are intolerable, for heaven’s sake look for another job.

If your working conditions are intolerable due to discrimination, sexual harassment, failure to pay wages, or something protected by law, complain to HR in writing before you quit and give the company a chance to correct the situation.

My exception to the don't-quit-unless-you-have-another-job rule would be if the work situation is dangerous (rape, assault, unsafe conditions). If that's the case, then get the heck out of there. No lawsuit or potential suit is worth your safety.

Can You Get Fired For Defending Yourself Against An Attack? Probably

The viral video of the woman being physically attacked by a customer at McDonalds over an anti-straw law drew much applause from folks who admired the way the cashier defended herself. However, she's now suspended and faces being fired for not allowing herself to be beaten up.

Should you be able to defend yourself if attacked at work? Common sense says yes, but at-will laws say no. Most employers have zero tolerance for workplace violence, so they fire all employees involved in a physical altercation. Most companies don't want to bother determining who started a fight. If a coworker attacks, I usually recommend workers drop into a fetal and yell for help so they can't be accused of fighting. The same would doubly apply to a customer attacking. Hitting a customer, even if you are attacked first, is a big taboo.

What circumstances would help this employee? There are some things that might save her:

Publicity: For one, a public outcry. A viral video and threats of a boycott if she's fired could go a long way toward saving her. However, there will probably still be a mark on her record and she'll be out if she has any other infraction.

Discrimination: If she can point to an employee of a different race, age, sex, national origin, or other protected status who defended themselves and wasn't fired, she might have a discrimination case.

Common sense: If McDonalds uses common sense instead of applying a zero-tolerance policy, then the company might decide to give her an award rather than punishing her. But corporate common sense in HR decisions is rare. They'd rather impose a draconian standard and err on the side of firing.

What do I think will happen? Well, she's hired a lawyer, so the threat of a lawsuit for negligent security might cool HR's jets. I think she'll be put back to work with a slap on the wrist and a cloud over her head. If I were her, I'd start looking elsewhere for a job.

You probably won't have a viral video to protect you, so my advice about dropping into a fetal and yelling for help still applies in most situations for victims of workplace violence.

How I Did On My Predictions for 2018

I predicted that 2018 would not be a good year overall for employees, and I was right. Here's how my predictions turned out.

Sexual harassment: I predicted that, despite all the brouhaha on #MeToo and sexual harassment, no new legislation would pass and that there would be backlash, and lots of it. There was no way I could predict Kavanaugh though. On the federal level, there was no new legislation, but the states stepped in and took some action. Much of the legislation related to sexual harassment by legislators, which was rampant. Many states decided to police their own. New York stepped up in a big way with prohibition of mandatory arbitration clauses and confidential sexual harassment settlements, among other changes to their sexual harassment laws. Still no laws that I've seen protecting unpaid interns from sexual harassment.

Agency paralysis: I predicted that, with cuts to EEOC, DOJ and NLRB, these agencies would develop backlogs and go into paralysis. I predicted that employees could expect little help from the feds this year. While EEOC actually went into overdrive to clear some backlogs, it was at the expense of employees actually expecting real investigations and serious treatment. DOJ and NLRB went out of their way to reverse Obama-era policies and decisions that favored employees. I said it last year and I was right, that EEOC mediations are still going strong. I stand by my statement that EEOC mediators, at least down here, are some of the best I've ever seen, government or private. I predicted that we would still see cases resolved in EEOC mediations unless the mediation program is cut too. That was correct, but I have noticed that fewer cases are being chosen for mediation, so there were clearly cuts to the mediation program.

Guns at work: I predicted that, thanks to high school students down here, we might start to see states revisiting those idiotic guns at work laws that have been all the rage. I was wrong. Not one state repealed these laws, and West Virginia passed one. I predicted some baby steps on common sense gun control for the first time in this country in a long time, and there was, but we have a long way to go.

Immigration raids: I predicted we'd see more employers being raided to round up illegal immigrants and arrest the bosses for hiring them, along with more traffic stops to round up immigrants. I was right. I never predicted we'd see families separated at the border.

Antitrust: The Department of Justice announced it would start cracking down on no-poach agreements between employers. I predicted this would be a ray of sunshine in an otherwise awful year for employees. DOJ brought a whopping one no-poach antitrust suit this year. It settled. Huzzah!

LGBT rights: I predicted the courts would continue to battle over whether or not Title VII'a sex discrimination prohibition covers sexual orientation. I said the Supremes wouldn't get to the issue this year, and they didn't.

Marijuana crackdowns: I predicted that the feds would start cracking down on legal marijuana use. It's still illegal on the federal level, no matter what your state says. I predicted the crackdown this year would be on the businesses, not on individuals. Fortunately, nothing much happened, and it was Jeff Sessions who was really fueling the anti-marijuana stuff on the federal level. He's gone, so yay I guess.

Overall, we saw nothing much pro-employee in 2018, and lots more reversals of Obama-era pro-employee policies. We saw anti-employee judges and NLRB members appointed. We saw chaos at DOJ. I'd give 2018 a big thumbs down from employees.

Ho Freaking Ho: Surviving The Office Holiday Party (Without Getting Fired)

It's time for your office holiday party. Joy to the world. Too many folks come to me after the holidays and tell me their holiday bonus was a firing due to something they did at the party. Here's how to survive without getting fired.

1. Drinking: The number one way to get fired is to drink too much. Most of the office party firings I see are alcohol-related in some way. First of all, if you are an alcoholic and can't be sure you won't drink if you attend, then don't go. If your boss insists, ask for a reasonable accommodation under the Americans With Disabilities Act to be excused from attendance. If you can and do drink, limit yourself to two drinks tops, then switch to soda. I'm serious here. 

2. Dancing: Some folks get fired or disciplined for "inappropriate" dancing. What's inappropriate? It's in the eye of the beholder, and the boss, customers, vendors and your coworkers are the beholders. When in doubt, sit it out. Any moves that imitate sexual conduct (grinding, gyrating, rubbing) are dangerous if colleagues are present. If you're dancing with a colleague, then be very careful. You don't need a sexual harassment complaint in the new year. If the colleague gets too wild, walk away. If it crosses the line into sexual harassment, report it.

3. Driving: A DUI can get you fired. Plus, you'll have a conviction and will never pass another background check, so you'll have trouble getting a new job. If you don't believe me, check out my article 9 Ways A DUI Can Destroy Your Career. If a colleague or friend tells you to hand over your keys because you've had too much, do it and don't question them. There's always Uber or a taxi. It's way cheaper than defending against a DUI/DWI charge and losing your job.

4. Mistletoe: Kiss your spouse or date under the mistletoe, but not a coworker, customer, vendor or, god forbid, your boss. Seriously. And any company that still has mistletoe up at holiday parties is too stupid to work for. Think about polishing your resume if you see some hanging.

5. Romance: After a few drinks, colleagues start to look pretty attractive. Office romances are dangerous. If you have a one-night-stand or party makeout session with a coworker, vendor, customer (or worse, the boss), expect repercussions at work. Sure, many couples meet at work. My parents did. But tread carefully. No means no. If you break up, stay away and don't retaliate. Persistence does not pay in an office relationship. You can get fired for sexual harassment if you pester a coworker for a date. Don't accept the invitation to the colleague's room. If there's a real romance, take it slow and be sure before you take it between the sheets. If you do pursue an office romance, check the company's policies. You might have to fill out a disclosure form, and you'll likely be separated so you no longer work together.

6. Pressure: Don't pressure anyone to attend an office party. They may have religious objections to attending. Maybe their disability prevents them from coming, or they have a spouse with a disability. You don't want to get charged with religious or disability harassment. And don't start the Merry Christmas/Happy Holidays debate. December is for Hanukkah, Christmas, Kwanzaa, Festivus, Winter Solstice, Hogmanay, and National Ding-A-Ling Day, to name a few. All holidays matter, especially in a workplace subject to religious discrimination laws. Don't end up accused of religious harassment for the holidays.

7. Games: Some offices have party games. You may be tempted to be lewd or bawdy. Sure, many folks will laugh and call you the life of the party. But you may ruin the party for someone you offend, like the boss. Avoid making sexual innuendos, telling off-color jokes, or making other comments that may be deemed inappropriate or offensive.

8. Singing: If the office loves karaoke, have fun. Go ahead and let your inner rock star shine. Just avoid songs with curse words, inappropriate lyrics, or offensive undertones. If you're singing with a colleague, avoid anything overtly sexual. Also avoid any sexual gestures while singing.

If you think I was being a party pooper, it wasn't me. It's your boss and HR that are Grinches. I'm just trying to keep you employed so you can have a happy holiday. 

Companies Fold As Employees Push Back On Forced Arbitration

First Google had a bunch of employees walk out to protest sexual harassment arbitration, and it rescinded its arbitration policy. Now other companies are following as employees push back. Facebook, Microsoft, Uber, Square, Airbnb and eBay have all rescinded or said they will rescind their forced arbitration agreements for sexual harassment claims.

It isn't just tech firms that are getting pressure from employees. When Harvard law students threatened to boycott law firm Kirkland and Ellis because of mandatory arbitration agreements, the firm quickly did a 180.

Now students at other law schools are joining the fight, and have vowed not to work for law firms that require arbitration of employment law claims. The student statement includes these strong statements against employee arbitration agreements:

Mandatory arbitration agreements prevent employees from seeking justice in court and limit the enforcement of substantive employment rights. Mandatory arbitration forces employees to submit any dispute with their employer to binding, private, and often confidential arbitration—a process which advantages sophisticated, repeat players at the expense of individual claimants.
. . .

Finally, we recognize that mandatory arbitration is a policy that negatively impacts all workers, legal and non-legal, and not merely associates and summer associates. We are committed to including questions about employment practices for all employees in future surveys.

I think it's about time employees push back. Still, I have to wonder how many of these law students will end up going into management-side law practice and forcing employees of their clients to arbitrate, despite their clear knowledge that such agreements are about oppressing workers. 

Now that employees have demonstrated that resistance to arbitration agreements is not futile, I hope unions and other employee groups will take up this fight. And I hope (but seriously doubt) that this new generation of lawyers might actually push their clients to drop forced arbitration of employees.

Dear Newly-Elected Officials: Here Are Some Things You Can Do For Workers In Your State

Congratulations to all you newly elected officials! Guess what? Most of your voters are also workers. And it's the workers who have felt left out by politicians lately, so it's time to do something to help workers in your state. Here are a few suggestions of pro-employee legislation you might want to take up in your state to help working people:

• State-run retirement plans for private sector: Some states have successfully established state-run retirement plans for private sector workers and required certain employers to auto-enroll their employees in these plans and/or allow their employees to opt in. The funds are then paid like any other 401k from payroll. Where Mitch McConnell is talking about rolling back Social Security, this may be the only way to help your state's future retirees.
•  Right to see your personnel file: While some states require employers to allow employees to review their personnel files, many states like my home state of Florida do not. It’s a basic right. You should be able to see any disciplines and reviews, and any contracts you signed.
•  Right to get a reason for termination: Some states require employers to give a reason for termination in writing. This would prevent employers from changing stories later to defame or damage a former employee.
•  Breaks: While most employees think the law mandates certain breaks, especially for hourly employees, some states have little protection for break time. Florida, for instance, only mandates breaks for minors. That includes bathroom breaks.
•  Real right to work: Many employees think right to work means noncompete agreements are unenforceable. That is untrue. Many states have limited noncompete agreements, Massachusetts being the most recent. Banning noncompetes against hourly employees, making them void if the employee is fired with no cause, making employers pay half or all salary while on a noncompete, barring employers from surprise sign-or-be-fired noncompetes after the employees starts working, are all measures other states have taken to protect employees.
• Sexual harassment of interns: Neither state nor federal law protects unpaid interns against sexual harassment because they aren’t employees. This is unconscionable, especially in a state like Florida where many high school students need internships to get the community service that is required to graduate.
• Verification of employment: Many states, again like my home state of Florida, do not require employers to verify employment for benefits, unemployment, references or otherwise. This keeps people from applying for government benefits and from getting jobs. Employers should be mandated by law to verify employment in writing within 48 hours from request

So celebrate your win. Then please do something to help working people in your state.