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, September 29, 2022

Ian Alert: You Don't Have To Work In Dangerous Post-Hurricane Conditions

After a storm, I usually get lots of calls and emails about employers making employees work in conditions they deem unsafe so I thought I'd repost this for those affected by Ian. In general, you don't have to work in unsafe conditions. Here's what OSHA says about workplace safety:

You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.
OSHA also has a flyer about safety during disaster cleanup here. Some basic safety rules:
  • Keep an adequate amount of clean water for drinking.
  • Make sure workers are trained to do any complex or hazardous tasks.
  • Provide the proper equipment such as gloves, respirators, boots, lifting equipment and eye protection.
A host of other specific fact sheets are here. Some particularly useful ones for hurricanes are:
Bottom line for employers is: don't be stupid. Don't have employees in business attire climbing ladders and removing debris. Make sure employees are properly dressed. Don't cheap out and try to use your clerical employees to move downed trees or work around downed power lines. The lawsuit you will face when someone is seriously injured or killed will cost you way more than hiring the correct folks for the job.

The worker's page for reporting problems and with more resources is here.

By the way, if your "exempt" employees are doing debris removal or other scut work, they probably aren't exempt from overtime for that work. But that's another issue for another day.

Wednesday, September 28, 2022

Ian Alert: If My Office Is Closed Due to a Hurricane, Am I Entitled To Be Paid?

It's that most awful time of the year, that is, time to re-run this popular and necessary column. I hope you make out okay in Hurricane Ian and suffer no damage. However, you may be wondering if you're getting paid.



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 (so maybe it’s a good time to start complaining to your legislators). If it veers nortn, South Carolina has some protections for state employees but none that I've found for private sector employees.  North Carolina does have a law regarding employer adverse weather policies (they aren't required to have them though):
If an employer does establish an adverse weather condition policy, then pursuant to N.C.G.S. §95-25.13(2), the employer must: "Make available to its employees, in writing or through a posted notice maintained in a place accessible to its employees, employment practices and policies with regard to promised wages." The employer must comply with its own adverse weather policy until such time as the employer changes its policy in writing, notifies its employees of such changes prior to the effective date, and does not take away retroactively any benefits already earned, pursuant to N.C.G.S. §95-25.13(3).
Disaster Unemployment Benefits: If your state is declared a disaster, you may qualify for disaster unemployment assistance. If your state gets hit, here's where to start searching to see if you can get disaster unemployment assistance. It may take a couple days to update, so keep checking. I checked before posting and the Ian-affected areas weren't there yet.

If you’re 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.

Thursday, August 25, 2022

Judge Blocks Private Employer Portions of Florida's Idiotic Stop WOKE Act

 I wrote a few weeks ago about the truly idiotic Stop WOKE Act that was passed in, you guessed it, Florida. Well, a federal judge just issued an injunction blocking its enforcement against private employers. The federal judge from the Northern District of Florida was duly irked:

In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. See Stranger Things (Netflix 2022). Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely. . . . Now, like the heroine in Stranger Things, this Court is once again asked to pull Florida back from the upside down.

The law, among other things, prevented private employers from certain diversity and anti-discrimination training. 

The Court gives a detailed example, and the judge's frustration is palpable:

In the end, Defendants suggest that there is nothing to see here. They say the IFA does nothing more than ban race discrimination in employment. But to compare the diversity trainings Plaintiffs wish to hold to true hostile work environments rings hollow. Worse still, “it trivializes the freedom protected” by Title VII and the FCRA “to suggest that” the two are the same. FAIR, 547 U.S. at 62.

Just imagine two scenarios. In the first scenario, a Black employee complains about a mandatory safety training scheduled on Juneteenth. Then, at a mandatory training the day before Juneteenth, “to the surprise of the employees in attendance, a white woman in a black gorilla suit enter[s] the meeting.” Henry v. CorpCar Servs. Hous., Ltd., 625 F. App’x 607, 608 (5th Cir. 2015).* As one of the managers blocks the only exit, the woman does “Tarzan yells and repeatedly refer[s] in a suggestive manner to ‘big black lips,’ ‘big black butt,’ and bananas.” Id. As the woman dances suggestively on one of the Black employees who had complained, another manager leans in and says: “Here’s your Juneteenth.” Id. In the second scenario, a company directs a White employee to attend a mandatory training in which employees watch “a video about violence committed against Black people in the United States over the centuries.” ECF No. 18-3 at 4. After the video, the presenter defines “Black rage”—“resistance towards oppressive people, practices, structures, and systems”—and “White Humility”—“a reflective practice that helps white people develop [the]capacity to interrupt white supremacy”—and asks Black and White participants to discuss them. Id. at 4, 12, 14. 

These two scenarios, under Defendants’theory, are indistinguishable. Indeed, Defendants say, to hold that the state may not ban the latter scenario is to hold that it may not ban the former. ECF No. 49 at 27 (arguing that a ruling for Plaintiffs would doom “a vast range of routine employment discrimination claims”). “If the law supposes that, the law is an ass, an idiot.” Charles Dickens, Oliver Twist 463 (3d ed. The New American Library 1961). But the law is neither an ass nor an idiot. It can tell the difference. Telling your employees that concepts such as “normal” or “professional” are imbued with historically based racial biases is not—and it pains this Court to have to say this—the same as trapping Black employees in a room while a woman in a gorilla suit puts on a retaliatory, racially inflammatory performance the day before a holiday celebrating the end of slavery. Rather, it is speech protected by the First Amendment. (emphasis added)

Things you didn't think you had to say when you became a federal judge, but apparently did.

The state is, of course, appealing. And because the injunction applies only to private employers, state employees are being terrorized by this ridiculous law, especially since schools and colleges are resuming.

I'm sure this isn't the last we'll hear on this law. As I wrote before, the law is badly written and I believe it actually means the opposite of what the legislature intended. SMH. 


* The fact that the judge doesn't have to make this bizarre scenario up explains why I have had a busy law practice for 36 years.

Thursday, August 18, 2022

Yes, It's Illegal To Retaliate If HR Managers Or Management Oppose Discrimination

Management-side lawyers are always trying to come up with new ways to make discrimination and retaliation legal. So it's no surprise that they argued in a recent case that there is a "management exception" to retaliation. The theory was that, if an HR manager or other management opposes discrimination as part of their regular job duties, they aren't covered by anti-retaliation laws.

The 11th Circuit has clearly rejected this argument:

The manager exception would carve out of Title VII protection the actions of management employees who have in the course of their normal job performance opposed an unlawful employment action of an employer. That carveout does not fit within the ordinary meaning of the word "opposed," and it is contrary to how Title VII uses the word. For one thing, the statute does not put any qualification on the word "opposed." It does not say an employee has engaged in protected activity unless her opposition came as part of her duties in the normal course of her employment.

Because it's not explicit in the text, to limit the plain meaning of "opposed," the manager exception would have to be implicit in how a person speaking "in ordinary discourse . . . would naturally use the word" opposed. Crawford, 555 U.S. at 277. But the limitations imposed on the word "opposed" by the manager exception would be neither "ordinary" nor "natural" to someone using that word. A person speaking "in ordinary discourse" would think an HR manager has opposed her employer's unlawful employment practices even if it's part of her job to do so. Opposition is opposition, whether the opposer is drawing a manager's salary or not.

It is too big a stretch to think that Congress silently and implicitly wrote into the opposition clause a significant exclusion of an entire category of employees, HR managers. We "assume that Congress does not generally hide elephants in mouseholes." CSX Transp., Inc. v. Ala. Dep't of Rev., 888 F.3d 1163, 1176 (11th Cir. 2018) (quotation marks omitted). That assumption is especially true here where the elephant would have to trample the ordinary and plain meaning of the words Congress did choose.

Whew! Thank goodness. Another attempt to make retaliation legal is rejected. If you're an HR person or other management employee who has opposed discrimination, it's illegal for your employer to retaliate against you. If you think illegal retaliation happened to you, contact an employee-side employment lawyer in your state to discuss your rights. 

Thursday, August 11, 2022

New Employer's Retaliation For Opposing Discrimination By A Former Employer Is Illegal

 One of the biggest worries I hear from clients and potential clients is the fear that filing a lawsuit for discrimination will follow them to a new employer. And it's a legitimate concern. A lawsuit is a public record. It will turn up in a background check. Plus, you'll have to testify and appear at hearings in your case, and your new employer will likely find out about your case. Even if it's not your case, what if you're subpoenaed to testify in a former coworker's case?

So, can a new employer retaliate against you for opposing discrimination by a former employer? The 11th Circuit Court of Appeals says such retaliation is illegal.

There is nothing in the anti-retaliation provision's opposition clause that permits an employer to retaliate against one of its employees for opposing an unlawful employment practice of a former employer. The clause forbids retaliation by "an employer" against "any individual" for having "opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a) (emphasis added). It doesn't say "opposed any practice of a current employer made an unlawful employment practice by [Title VII]." A former employer's unlawful employment practice is just as much an unlawful employment practice as one of a current employer. The statutory text makes no distinction between the two. Opposition is opposition, and any unlawful employment practice is any unlawful employment practice.

And the entity that the statutory provision forbids from retaliating is "an employer," not just the employer whose unlawful employment practice the employee opposed. In this context, as is usually the case, the indefinite article "an" means "any." See Alabama, 778 F.3d at 933. Georgia Pacific is unquestionably "an employer," and at the time it allegedly retaliated by firing Patterson it was her employer.

We hold that under the opposition clause's plain language, a current employer may not retaliate for opposition clause conduct even if it is directed at or involves only a former employer. See McMenemy v. City of Rochester, 241 F.3d 279, 284 (2d Cir. 2001) ("We think that Title VII protects an employee from any employer, present or future, who retaliates against him because of his prior or ongoing opposition to an unlawful employment practice or participation in Title VII proceedings.").

This case only refers to an employer, and not a potential employer. A discrimination lawsuit can turn up in a background check and there could be little way to prove that it was the reason you were denied a position. Still, Title VII makes such discrimination illegal:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-­management committee controlling apprenticeship or other training or retraining, including on—the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

The Fair Credit Reporting Act requires that employers provide you with a copy of any background check that caused them to turn down your employment, so it's wise to ask for a copy of any background check to see if a discrimination lawsuit is mentioned.

Bottom line: employers and potential employers can't legally discriminate against you for opposing discriminaiton by a former employer. It's your burden to prove that was the reason, but if you think this is what happened, talk to an employee-side employment lawyer in your state about your rights. 

Thursday, August 4, 2022

Employer Asking About Family Members' COVID Test Results Is Illegal

EEOC recently settled a case where an employer was deemed to have violated the Genetic Information Nondiscrimination Act by collecting COVID testing data about employee family members. If your employer is making you provide information about your family's COVID test results, they may be breaking the law.

So what does COVID testing have to do with genetic information? EEOC provided some guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. They provide this information:

May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19?

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking about an employee’s contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.

GINA generally protects employees from discrimination relating to their family medical histories, so asking for family medical information is a big no-no.

In sum, your employer can ask you if you have had contact with anyone who has COVID or COVID symptoms. They cannot specifically demand your family member's test results or whether family members have COVID or COVID symptoms. 

If you think your employer is violating GINA, contact an employee-side employment attorney in your state about your rights.

Thursday, July 28, 2022

Did A Computer Reject Your Job Application? You May Have A Disability Discrimination Claim

 Some large employers have left their hiring, promotion, and firing decisions up to computers instead of real humans. And while that may be more efficient, it may also be causing them to reject disabled applicants. EEOC has issued a guidance on The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees. The guidance provides examples of when computers can cause disability discrimination.

EEOC lists some types of employment screening tools that employer use which could cause disability discrimination. These include "resume scanners that prioritize applications using certain keywords; employee monitoring software that rates employees on the basis of their keystrokes or other factors; “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements; video interviewing software that evaluates candidates based on their facial expressions and speech patterns; and testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test."

Per EEOC, the most common ways that an employer’s use of these decision-making tools could violate the ADA are:
The employer does not provide a “reasonable accommodation” that is necessary for a job applicant or employee to be rated fairly and accurately by the algorithm. 
The employer relies on an algorithmic decision-making tool that intentionally or unintentionally “screens out” an individual with a disability, even though that individual is able to do the job with a reasonable accommodation. “Screen out” occurs when a disability prevents a job applicant or employee from meeting—or lowers their performance on—a selection criterion, and the applicant or employee loses a job opportunity as a result. A disability could have this effect by, for example, reducing the accuracy of the assessment, creating special circumstances that have not been taken into account, or preventing the individual from participating in the assessment altogether.
The employer adopts an algorithmic decision-making tool for use with its job applicants or employees that violates the ADA’s restrictions on disability-related inquiries and medical examinations.

EEOC provides multiple examples of how these violations might occur:

  • [A] job applicant who has limited manual dexterity because of a disability may report that they would have difficulty taking a knowledge test that requires the use of a keyboard, trackpad, or other manual input device. Especially if the responses are timed, this kind of test will not accurately measure this particular applicant’s knowledge. In this situation, the employer would need to provide an accessible version of the test (for example, one in which the applicant is able to provide responses orally, rather than manually) as a reasonable accommodation, unless doing so would cause undue hardship. If it is not possible to make the test accessible, the ADA requires the employer to consider providing an alternative test of the applicant’s knowledge as a reasonable accommodation, barring undue hardship.
  • An example of screen out might involve a chatbot, which is software designed to engage in communications online and through texts and emails. A chatbot might be programmed with a simple algorithm that rejects all applicants who, during the course of their “conversation” with the chatbot, indicate that they have significant gaps in their employment history. If a particular applicant had a gap in employment, and if the gap had been caused by a disability (for example, if the individual needed to stop working to undergo treatment), then the chatbot may function to screen out that person because of the disability.
  • Another kind of screen out may occur if a person’s disability prevents the algorithmic decision-making tool from measuring what it is intended to measure. For example, video interviewing software that analyzes applicants’ speech patterns in order to reach conclusions about their ability to solve problems is not likely to score an applicant fairly if the applicant has a speech impediment that causes significant differences in speech patterns. If such an applicant is rejected because the applicant’s speech impediment resulted in a low or unacceptable rating, the applicant may effectively have been screened out because of the speech impediment.
  • [S]ome employers rely on “gamified” tests, which use video games to measure abilities, personality traits, and other qualities, to assess applicants and employees. If a business requires a 90 percent score on a gamified assessment of memory, an applicant who is blind and therefore cannot play these particular games would not be able to score 90 percent on the assessment and would be rejected. But the applicant still might have a very good memory and be perfectly able to perform the essential functions of a job that requires a good memory.
  • [S]ome pre-employment personality tests are designed to look for candidates who are similar to the employer’s most successful employees—employees who most likely work under conditions that are typical for that employer. Someone who has Posttraumatic Stress Disorder (“PTSD”) might be rated poorly by one of these tests if the test measures a trait that may be affected by that particular individual’s PTSD, such as the ability to ignore distractions. Even if the test is generally valid and accurately predicts that this individual would have difficulty handling distractions under typical working conditions, it might not accurately predict whether the individual still would experience those same difficulties under modified working conditions—specifically, conditions in which the employer provides required on-the-job reasonable accommodations such as a quiet workstation or permission to use noise-cancelling headphones. If such a person were to apply for the job and be screened out because of a low score on the distraction test, the screen out may be unlawful under the ADA. Some individuals who may test poorly in certain areas due to a medical condition may not even need a reasonable accommodation to perform a job successfully.
  • [S]uppose that an employer uses an algorithm to evaluate its employees’ productivity, and the algorithm takes into account the employee’s average number of keystrokes per minute. If the employer does not inform its employees that it is using this algorithm, an employee who is blind or has a visual impairment and who uses voice recognition software instead of a keyboard may be rated poorly and lose out on a promotion or other job opportunity as a result. If the employer informs its employees that they will be assessed partly on the basis of keyboard usage, however, that same employee would know to request an alternative means of measuring productivity—perhaps one that takes into account the use of voice recognition software rather than keystrokes—as a reasonable accommodation.
  • [I]f a personality test asks questions about optimism, and if someone with Major Depressive Disorder (“MDD”) answers those questions negatively and loses an employment opportunity as a result, the test may “screen out” the applicant because of MDD.

EEOC has some specific suggestions to help you assure you're being assessed fairly:
If you have a medical condition that you think might qualify as an ADA disability and that could negatively affect the results of an evaluation performed by algorithmic decision-making tools, you may want to begin by asking for details about the employer’s use of such tools to determine if it might pose any problems related to your disability. If so, you may want to ask for a reasonable accommodation that allows you to compete on equal footing with other applicants or employees.

For example, if an employer’s hiring process includes a test, you may wish to ask for an accessible format or an alternative test that measures your ability to do the job in a way that is not affected by your disability. To request a reasonable accommodation, you need to notify an employer representative or official (for example, someone in Human Resources) or, if the employer is contracting with a software vendor, the vendor’s representative or the employer, that you have a medical condition, and that you need something changed because of the medical condition to ensure that your abilities are evaluated accurately.

Note that if your disability and need for accommodation are not obvious or already known, you may be asked to submit some medical documentation in support of your request for accommodation. To find out more about asking for reasonable accommodations, see Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada.

If you only discover that an algorithmic decision-making tool poses a problem due to your disability after the evaluation process is underway, you should notify the employer or software vendor as soon as you are aware of the problem and ask to be evaluated in a way that accurately reflects your ability to do the job, with a reasonable accommodation if one is legally required.

If you have already received a poor rating generated by an employer’s use of an algorithmic decision-making tool, you should think about whether your health condition might have prevented you from achieving a higher rating. For example, might a disability have negatively affected the results of an assessment, or made it impossible for you to complete an assessment? If so, you could contact the employer or software vendor immediately, explain the disability-related problem, and ask to be reassessed using a different format or test, or to explain how you could perform at a high level despite your performance on the test.

If you have a disability and are getting rejected by computers, or if you are  being assessed by means that include computer algorithms, then you might consider contacting an employee-side employment attorney to find out about your rights.