Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Thursday, December 14, 2023

Florida Legislator Wants To Make It Illegal To Say Gay (Or Your Pronouns) At Work

Florida seems to be in a race with Texas and some other red states to see which can be the worst state for employees in the nation. Now a legislator has proposed a law (which will likely pass, because GOP be cray cray) that would be similar to the now-infamous Don't Say Gay bill but apply to workplaces. 

Some gems from this ridiculous-but-likely-to-become-law bill include:

Training is illegal: It would be illegal to provide training that included issues of gender expression, gender identity, or sexual orientation.

Pronouns are illegal: It would be illegal to discuss your preferred pronouns or for your employer to tell anyone else your preferred pronouns.

Misgendering is legal: It would be illegal for an employer to punish coworkers for deliberate misgendering.

This idiotic law would apply to state employees and nonprofits. So nonprofits that cater to the LGBTQ community would not be able to train employees, discuss pronouns, or punish employees for deliberate misgendering of trans people, including their clients. 

As I said, Florida is likely to pass this law, and our governor will, of course, sign it. So brace yourselves.

The good news is that LGBTQ discrimination is illegal under Title VII, so I'm sure there will be litigation over this. The Supremes are the ones that said Title VII applies to sexual orientation and societal expectations regarding gender roles. Will they reverse themselves? Very possibly.

Vote well friends. Vote blue in every single election if you want the crazy train to stop.

Thursday, December 7, 2023

Have A Visual Disability: EEOC Issues Guidance On Your Workplace Rights

 EEOC has issued a guidance to assist workers with visual disabilities regarding their workplace rights. This guidance discusses:

  • when an employer may ask an applicant or employee questions about a vision impairment and how an employer should treat voluntary disclosures;
  • what types of reasonable accommodations applicants or employees with visual disabilities may need;
  • how an employer should handle safety concerns about applicants and employees with visual disabilities; and
  • how an employer can ensure that no employee is harassed because of a visual disability.
Who is covered: EEOC says this about coverage for visual disabilities under the Americans With Disabilities Act
Under the first prong of the ADA’s definition of disability, an individual with a vision impairment who is substantially limited in seeing or in the major bodily function of using special sense organs (here, the eyes), has an “actual disability.” Under the second prong of the ADA’s definition of disability, an individual with a history of an impairment that substantially limits a major life activity—even if the impairment no longer exists—is considered to have a “record of” a disability. An applicant or employee may have a “record of” a disability, for example, when the individual’s substantially limiting vision impairment has been corrected surgically.

Whether an impairment “substantially limits” a major life activity is not meant to be a demanding standard. A vision impairment does not need to “prevent, or significantly or severely restrict,” an individual’s ability to see in order to be a disability, as long as the individual’s vision is substantially limited when compared to the vision of most people in the general population. Further, a determination of disability must ignore the positive effects of mitigating measures (other than “ordinary eyeglasses or contact lenses”) that an individual uses. For example, mitigating measures may include the use of low-vision devices that magnify, enhance, or otherwise augment a visual image. An individual with a vision impairment who uses low-vision devices will be substantially limited in seeing compared to most people in the general population who can see without the use of such devices. Another type of mitigating measure is the use of learned behavioral modifications (for example, an individual with monocular vision may turn their head from side to side to compensate for the lack of peripheral vision). An individual with monocular vision, regardless of such compensating behaviors, will be substantially limited in seeing compared to most people in the general population. An individual who is blind should easily be found to have an “actual disability” under the ADA, because they are substantially limited in the major life activity of seeing.

While using glasses or contacts isn't a covered disability, many other vision impairments are covered. Employers can't ask about your vision pre-hiring. They can ask, however, if you can perform the duties of the job with or without accommodations. If you can perform the job with accommodations, the answer is yes. You don't have to disclose the accommodations before being hired. After hiring, they can ask about what the accommodations are in order to determine whether they are reasonable.

Under the ADA, the period after offering an applicant a job but before the individual starts working is called the “post-offer period” and the job offer may be subject to an applicant’s responses to medical questions and/or passing a medical exam. This means, when an applicant discloses after receiving a conditional job offer but before starting work that the applicant has or had a vision impairment, the employer may ask the applicant additional questions, such as:how long the applicant has had the vision impairment;
what, if any, vision the applicant has;
what specific visual limitations the applicant experiences; and
what, if any, reasonable accommodations the applicant may need to perform the job.

After obtaining basic medical information from all applicants, an employer may follow up with an individual who has disclosed a vision impairment, or the extent of a vision impairment, to seek additional information, if additional questions or a requested medical examination is medically related to the information already received. An employer may ask this individual to answer questions specifically designed to assess the applicant’s ability to perform the job’s functions safely.

An employer may not withdraw an offer from an applicant with a vision impairment if the individual is able to perform the essential functions of the job, with or without reasonable accommodation. If the employer has concerns that the applicant’s vision impairment may create a safety risk in the workplace, the employer may conduct an individualized assessment to evaluate whether the individual’s impairment poses a direct threat (that is, a significant risk of substantial harm to the health or safety of the applicant or others that cannot be eliminated or reduced through reasonable accommodation).

There are many types of accommodations that are considered reasonable. EEOC gives many examples in this guidance that will be a good reference if you are seeking accommodations.

There is a wide range of possible changes in the application process, or in the way an employee performs the work, that can serve as reasonable accommodations for individuals with vision impairments. These can include, for example: assistive technology (such as text-to-speech software); accessible materials (such as braille or large print); modification of workplace/employer policies or procedures (such as allowing the use of guide dogs in the work area), testing (such as allowing alternative testing), or training; ambient adjustments (such as brighter office lights); sighted assistance or services (such as a qualified reader);or other modifications or adjustments that allow a qualified applicant or employee with an ADA disability to enjoy equal employment opportunities.

In general, employers must accommodate disabilities in the workplace, including visual disabilities. This guidance will be an important source of information to individuals with visual disabilities in the workplace. 

Thursday, November 30, 2023

Were You Harassed At Work? EEOC Issues New Guidance on Workplace Harassment

 I have to say this almost daily, and I'll say it again here: general harassment at work is not illegal. Harassment because you are you is not illegal. Bullying is not illegal. However, bullies tend to pick on the weak and the different, and that may mean the bullying is illegal. EEOC just issued new proposed guidelines on what constitutes illegal workplace harassment and how to prove it. I'll touch on some highlights.

EEOC goes through characteristics that are legally protected and gives examples. Here's what they say about race and color discrimination:

Race and color: Race-based harassment includes harassment based on a complainant’s race, e.g., harassment because the complainant is Black, Asian American, white, or multiracial.Examples of harassing conduct based on race include racial epithets or offensive comments about members of a particular race, or harassment based on stereotypes about the complainant’s race. It also can include harassment based on traits or characteristics linked to an individual’s race, such as the complainant’s name, cultural dress, accent or manner of speech, and physical characteristics, including grooming practices (e.g., harassment based on hair textures and hairstyles commonly associated with specific racial groups). Color-based harassment includes harassment based on skin tone.

Example 1: Color-based Harassment. Shawn, a Pakistani-American with brown skin, files a charge of discrimination alleging that two of his direct supervisors have subjected Shawn to unlawful harassment based on color. Shawn alleges that on a near-daily basis, his supervisors call him “turd” and otherwise make comments to him that suggest his skin is the color of human feces. According to Shawn, one supervisor exited the bathroom, placed a cup containing feces on Shawn’s desk, and stated the feces looked like Shawn. Based on these facts, Shawn has alleged harassment based on color.

They also describe national origin, sex/gender, religion, pregnancy/childbirth/related conditions, sexual orientation and gender identity, age, and disability-based harassment and give examples. 

Here are some other issues they cover:

Erroneous perception: "Harassment based on the perception that an individual has a particular protected characteristic, for example, the belief that a person has a particular national origin or religion, is covered by federal EEO law even if the perception is incorrect.[47] Thus, harassment of a Hispanic person because the harasser believes the individual is Pakistani is national origin harassment, and harassment of a Sikh man wearing a turban because the harasser thinks he is Muslim is religious harassment, even though the perception in both instances is incorrect."

Association: "The EEO laws also cover “associational discrimination.” This includes harassment because the complainant associates with someone in a different protected classor harassment because the complainant associates with someone in the same protected class. Such association may include, but is not limited to, close familial relationships, such as marriage, or close friendship with another individual belonging to a protected group."

Same class: "Harassment that is based on the complainant’s protected characteristic is covered even if the harasser is a member of the same protected class."

Societal expectations: "Harassment based on protected characteristics includes harassment based on social or cultural expectations regarding how persons of a particular protected group, such as persons of a particular race, national origin, or sex, usually act, appear, or behave.This includes, but is not limited to, harassment based on assumptions about racial, ethnic, or other protected characteristics, or sex-based assumptions about family responsibilities, suitability for leadership roles,or sex roles."

Example 9: Causation Established Based on Sex Stereotyping. Eric, an iron worker, alleges he was subjected to sexual harassment from his foreman, Joshua. The investigation reveals that Joshua found a remark Eric made to be “feminine” and then began calling Eric “pu__y,” “princess,” and “fa___t,” often several times a day. Several times a week, Joshua approached Eric from behind and simulated intercourse with him. On about ten occasions, Joshua exposed himself to Eric. Based on these facts, the investigator concludes that Joshua targeted Eric based on his perception that Eric did not conform to traditional male stereotypes and subjected Eric to harassment based on sex.

Causation: The guidance gives many examples of how to prove that it was discrimination that caused the behavior as opposed to something else. 

Example 10: Causation Established by Social Context. Ron, a Black truck driver, finds banana peels on his truck on multiple occasions. After the third of these occasions, Ron sees two white coworkers watching his reaction to the banana peels. An investigation reveals no evidence that banana peels were found on any other truck or that Ron found any trash on his truck besides the banana peels. Based on these facts, an investigator concludes that the appearance of banana peels on Ron’s truck was not coincidental. The investigator further finds that the use of banana peels invokes “monkey imagery” that, given the history of racial stereotypes against Black individuals, was intended as a racial insult. It thus constitutes harassment based on race.

Example 12: Comparative Evidence Gives Rise to Inference that Harassing Conduct Is Based on a Protected Characteristic. Tyler is a manager for an educational services firm. Tyler directly supervises two women, Kailey and Anu, and two men, Sandeep and Levi. Tyler grants Kailey’s request for time off to visit her dying sister. When Kailey returns, Tyler confronts her and yells at her for not reading her “damn email” while she was away. From then on, Tyler regularly hovers over Kailey and Anu as they work to make sure they don’t “mess up.” Tyler also yells and shakes his fist at Kailey and Anu when he is angry at them. This conduct continues, and Kailey and Anu file EEOC charges alleging harassment based on sex. During the investigation, the investigator finds that Sandeep and Levi report that Tyler, although occasionally irritable, generally engages in friendly banter with them that is different from the aggressiveness that Tyler displays toward female employees. Tyler sometimes even allows Sandeep and Levi to relax in his office in the afternoons, doing little or no work. Tyler also permits Sandeep and Levi to leave the office early and does not monitor their work performance. Tyler’s different treatment of women and men who are similarly situated would support an investigator’s conclusion that Tyler’s treatment of Kailey and Anu was based on their sex.

This proposed guidance is pretty comprehensive and is a good resource to review if you think you've been illegally harassed. When in doubt, talk to an employee-side employment lawyer in your state about your rights. 

Wednesday, November 22, 2023

Mandatory Religious Liberty Training By Extremist Anti-Abortion Group Coming To Your Workplace

 In a WTAF moment I'm still trying to process, Southwest Airlines has been ordered to provide religious liberty training to its lawyers. The training is part of the remedy a judge appointed by TFG has ordered after the airline lost a religious discrimination case. So far not so bad, right?

But the judge has ordered the training be done by the Alliance Defending Freedom, a far right extremist anti-abortion group that wrote the Missouri abortion ban and worked to overturn Roe. They are currently suing the FDA to ban abortion pills. 

I just don't see how forcing them to undergo this kind of extremist religious indoctrination doesn't violate the lawyers' religious liberty. Appoint a real trainer, not some zealots.

The order is stayed now pending appeal, but the case is terrifying. If this case stands, then employers can be ordered to indoctrinate employees in right-wing extremism.

If you find this disturbing, vote blue in all elections, especially Senate and the President, but lower races as well. 

Wednesday, November 15, 2023

Does Your Noncompete Agreement Violate the National Labor Relations Act?

 The NLRB General Counsel is taking the position that noncompete agreements in employment and severance agreements violates the National Labor Relations Act.

Non-compete provisions are overbroad, that is, they reasonably tend to chill employees in the exercise of Section 7 rights, when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, aptitudes, and preferences as to type and location of work. Generally speaking, this denial of access to employment opportunities chills employees from engaging in Section 7 activity because: employees know that they will have greater difficulty replacing their lost income if they are discharged for exercising their statutory rights to organize and act together to improve working conditions; employees’ bargaining power is undermined in the context of lockouts, strikes, and other labor disputes; and, an employer’s former employees are unlikely to reunite at a local competitor’s workplace, and, thus be unable to leverage their prior relationships—and the communication and solidarity engendered thereby—to encourage each other to exercise their rights to improve working conditions in their new workplace.

In addition, non-compete provisions that could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting access to other employment opportunities chill employees from engaging in five specific types of activity protected under Section 7 of the Act. First, they chill employees from concertedly threatening to resign to demand better working conditions. Specifically, they discourage such threats because employees would view the threats as futile given their lack of access to other employment opportunities and because employees could reasonably fear retaliatory legal action for threatening to breach their agreements, even though such legal action would likely violate the Act. Second, they chill employees from carrying out concerted threats to resign or otherwise concertedly resigning to secure improved working conditions. Although extant Board law does not unequivocally recognize a Section 7 right of employees to concertedly resign from employment, such a right follows logically from settled Board law, Section 7 principles, and the Act’s purposes. It is also consistent with the U.S. Constitution and other federal laws. Accordingly, I will urge the Board to limit decisions inconsistent with that right to their facts or overrule them.  

Is this a magic wand that makes your noncompete go poof? No. But it gives you another weapon in your arsenal to challenge your noncompete agreement, assuming your employer is covered by the NLRA (most are). The key here to challenging noncompetes through the National Labor Relations Act is concerted activity. You'd have to be part of a group of employees that want to threaten to resign or go to a better workplace. By yourself, the challenge probably fails. 

Plus, there is no caselaw supporting this specific issue, so there's no guarantee the federal courts as currently constituted (the Supremes have been very pro-employer) would uphold this interpretation.

If you think your noncompete may violate the National Labor Relations Act, you can file a charge against employer with the NLRB within 6 months of the alleged violation, or talk to an employee-side employment lawyer in your state about your rights.

Wednesday, November 8, 2023

Fired for Advocating for Non-Employees? You May Have Rights

The National Labor Relations Board has ruled that employees who advocate for non-employees such as applicants and interns are legally protected by the National Labor Relations Act. The NLRB Chair said, "“Standing in solidarity can be a protected act regardless of the employment status of those you stand with — the question is simply whether, in helping others, employees might help themselves and get help in return."

The case involved an employer's refusal to rehire a former employee. An employee who attempted to rally coworkers in support of the former employee was deemed legally protected.

The thing about the National Labor Relations Act is that it protects "concerted activity" and not just you acting on behalf of yourself. So trying to get coworkers to support an intern or a potential hire now falls within the legal protections of the NLRA.

The Board explained what constitutes "concerted activity":

Thus, as the Board has explained, the statutory concept of protected concerted activity has two elements: the employee’s activity must be “concerted,” and it must be “for mutual aid or protection.” E.g., Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151, 152–153 (2014). 

“[W]hether an employee’s activity is ‘concerted’ depends on the manner in which the employee’s actions may be linked to those of his coworkers.” Id. at 153 (citing, inter alia, NLRB v. City Disposal Systems, 465 U.S. 822, 831 (1984)). The Board has held that concerted activity “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). Notably, the “object of inducing group action need not be express,” and an employee’s statement may, in certain contexts, “implicitly elicit[] support from his fellow employees.” Whittaker Corp., 289 NLRB 933, 933–934 (1988). As the Board stated in Meyers II, “the question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.” 281 NLRB at 886. “Mutual aid or protection,” in turn, “focuses on the goal of concerted activity; chiefly, whether the employee or employees involved are seeking to ‘improve terms and conditions of employment or otherwise improve their lot as employees.’” Fresh & Easy, supra, 361 NLRB at 153 (emphasis in original) (quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)). Both the “concertedness” and “mutual aid or protection” elements under Section 7 are analyzed under an objective standard, whereby motive for taking the action is not relevant to whether it was concerted, nor is motive relevant to whether it was for “mutual aid or protection.” Id.

The Board further elaborated: "It is well established that “the activity of a single employee in enlisting the support of his fellow employees for their mutual aid and protection is as much ‘concerted activity’ as is ordinary group activity.” Whittaker Corp., supra, 289 NLRB at 933 (1988) (quoting Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969))."

Bottom line is that you are allowed to speak up about working conditions and to attempt to get coworkers to take action regarding working conditions. You don't have to succeed in rallying coworkers to join you. Advocating on behalf of non-employees such as potential employees and interns is now legally protected. 

If an employer retaliates against you for doing so, or for taking any other protected concerted action, then you can file a charge against employer with the NLRB within 6 months from the date of retaliation.

Friday, August 25, 2023

BREAKING: If Employer Commits Unfair Labor Practice Before Union Election, Union Is Automatically Recognized

In a total game-changer, the NLRB has ruled today that, where an employer commits unfair labor practices before a union election, the union is automatically recognized and the employer must bargain. 

It doesn't appear to apply to every unfair labor practice in every election. But it will force employers to behave better before union elections or risk having the union automatically recognized. Here's a summary:

  • It applies where a majority of employees have said they want the union to represent them and the employer either challenges the union majority and demands an election.
  • It applies if the employer refuses to bargain without filing a petition for an election and challenges the election due to unfair labor practices.
  • It applies if the union has filed a petition for an election.
  • If the employer commits an unfair labor practice that requires setting aside the election, the employer will be subject to a remedial bargaining order.
  • Employers are no longer allowed to frustrate the election process.
  • If the employer interferes with the election process,  NLRB will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer.
  • "Simply put, an employer cannot have it both ways. It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way."

Here's what NLRB said about the new standard:

Under the standard we adopt today, an employer violates Section 8(a)(5) and (1) by refusing to recognize, upon request, a union that has been designated as Section 9(a) representative by the majority of employees in an appropriate unit unless the employer promptly139 files a petition pursuant to Section 9(c)(1)(B) of the Act (an RM petition) to test the union’s majority status or the appropriateness of the unit, assuming that the union has not already filed a petition pursuant to Section 9(c)(1)(A).140 Section 9(c)(1)(B) of the Act grants employers an avenue for testing the union’s majority through a representation election if the Board, upon an investigation and hearing, finds that a question of representation exists. In order to reconcile the provisions of Section 8(a)(5) and Section 9(a), which require an employer to recognize and bargain with the “designated” majority representative of its employees, with the language of Section 9(c)(1)(B) granting employers an election option, we conclude that an employer confronted with a demand for recognition may, instead of agreeing to recognize the union, and without committing an 8(a)(5) violation, promptly file a petition pursuant to Section 9(c)(1)(B) to test the union’s majority support and/or challenge the appropriateness of the unit or may await the processing of a petition previously filed by the union.  

 However, if the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order. Thus, this accommodation of the Section 9(c) election right with the Section 8(a)(5) duty to recognize and bargain with the designated majority representative will only be honored if, and as long as, the employer does not frustrate the election process by its unlawful conduct. As the Supreme Court observed in Gissel, Section 9(c)(1)(B) was not intended to confer on employers “an absolute right to an election at any time; rather, it was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a union’s majority in a secret election which they would then presumably not cause to be set aside by illegal antiunion activity.” 395 U.S. at 599. If the employer commits unfair labor practices that invalidate the election, then the election necessarily fails to reflect the uncoerced choice of a majority of employees. In that situation, the Board will, instead, rely on the prior designation of a representative by the majority of employees by nonelection means, as expressly permitted by Section 9(a), and will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer. 

Our focus, then, is on the unlawful conduct of the employer that prevents a free, fair, and timely representation election. Given the strong statutory policy in favor of the prompt resolution of questions concerning representation, which can trigger labor disputes, we do not believe that conducting a new election—after the employer’s unfair labor practices have been litigated and fully adjudicated – can ever be a truly adequate remedy. Nor is there a strong justification for such a delayed attempt at determining employees’ free choice again where the Board has determined that employees had already properly designated the union as their majority representative, consistent with the language of the Act, before the employer’s unfair labor practices frustrated the election process. Simply put, an employer cannot have it both ways. It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way.

An employer that refuses to bargain without filing a petition under Section 9(c)(1)(B) may still challenge the basis for its bargaining obligation in a subsequently filed unfair labor practice case. However, its refusal to bargain, and any subsequent unilateral changes it makes without first providing the employees’ designated bargaining representative with notice and an opportunity to bargain, is at its peril.

This will make it much easier for workers who are organizing a union to have their union recognized. And it should stop much of the a**hattery that goes on during union-busting. 

Union yes!