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.

Sunday, September 1, 2019

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 Dorian. 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.

Friday, August 30, 2019

If My Office Is Closed Due To Hurricane Dorian, Do I Get 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 Dorian 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.

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.

Tuesday, August 27, 2019

Clearing Up 10 Common Misconceptions About Employment Law

I'd like to quickly clear up some common misconceptions about employment law:

  1. Breaks: There is no federal (or Florida) law requiring breaks for adult employees.
  2. Reason for firing: No, your employer doesn't have to give you a reason for firing you in Florida or most states. Some states do require that employers give a reason in writing, but it's not the majority. The good news is the failure to give a reason could prevent them from getting a summary judgment based on having a legitimate reason to fire you.
  3. Right to work: Right to work does not mean that noncompete agreements can't be enforced. It has absolutely nothing to do with noncompetes. It has to do with whether you have to pay union dues to work in a union workplace. It is a measure meant to weaken/destroy labor unions.
  4. Harassment: Bullying, harassment and hostile environment are not illegal in any state but Tennessee, and that's only for government employees. Hostile environment or harassment is illegal if it is because of race, sex, age, national origin, disability or other protected class.
  5. Retaliation: If you complain about bullying or hostile environment that isn't due to a protected class, you aren't legally protected against retaliation.
  6. Noncompete agreements: Noncompetes are frequently enforced in Florida. It's one of the most anti-employee states in the nation. Stop telling people noncompetes are never enforced here. Seriously.
  7. Firing: Yes, your employer can fire you over the phone or by text. There is no law saying it has to be done in person or with an HR person present. There is no particular way an employer has to fire you unless you have a contract saying otherwise.
  8. Unfair treatment: Yes, your employer can be arbitrary. They don't have to treat everyone the same. They can be jerks. What they can't do is treat people differently due to age, race, sex, national origin, disability or other protected class.
  9. Doctor's note: Yes, you can be fired for missing work even if you have a doctor's note. Unless you are covered by FMLA (worked at least a year, employer has at least 50 employees, absence for serious medical condition) or the absence relates to a disability, you can be fired for missing work when you're sick.
  10. FMLA and vacation/sick time: Don't wait until you use up your sick or vacation time to put in for FMLA. They go hand in hand. If you have accrued paid time off, then your FMLA is paid. Otherwise, it is unpaid. 
These are not by any means all the misconceptions I encounter about my area of practice, but they are some recent ones. Bottom line is don't listen to your non-lawyer friends when they opine about your legal rights. And frankly some non-employment lawyers get some of this stuff wrong (like the enforceabilty of noncompetes and right to work). When in doubt, talk to an employment lawyer in your state about your rights.




Wednesday, August 21, 2019

How Transgender Discrimination Cases Affect Straight Employees

There's a case in front of the Supreme Court right now that will answer whether employers may discriminate against transgender workers. The orange one's administration says employers should be able to discriminate against trans people. If you think that case won't affect you because you're straight or not transgender, think again.

When I was starting out in law practice, a judge decided that women were prohibited from appearing in his court in pants. There was an outcry, of course, and the judge had to reverse course. I didn't wear anything but pants in court for years after that, and still mostly wear pants. The Department of Justice has supported the funeral home owner in the transgender discrimination case, and that owner has specifically stated that he would fire any woman who refused to wear a skirt to work. The DOJ thinks that's just fine and dandy.

Transgender discrimination is part of sex discrimination, and that's why some courts have said its illegal. The theory is that trans people don't meet gender stereotypes of what a man or woman should look like, dress like and behave like, and that if they were another gender they wouldn't have any issues.

These cases impact more than just trans employees because they affect any worker that doesn't fit in with sexual stereotypes. A woman that wants to wear pants, a man that doesn't like football, a woman that drinks beer and watches sports with the guys, a man that enjoys sewing, a woman who drives a muscle car, a man who wears pink clothes, the list can go on and on of behaviors and appearances that might not meet a boss's expectations of what a man or woman should be.

If you look back at other discrimination cases, you can see that they had a positive impact on others outside their protected class. Sex discrimination cases involving height and weight requirements for police and fire allowed smaller men to choose those professions as well as women. Disability discrimination cases involving wheelchair access also allows parents with strollers easier access to buildings. By eliminating arbitrary restrictions on employment and accessibility, we make things better for many people.

So if you aren't typical of your gender, if you don't fall into 100% of what people traditionally think your gender should be (and isn't that most of us in some way?), or if you just want to wear pants or pink to work, then you should be rooting for the trans workers who are fighting for legal protections against discrimination. Let's not go back to the bad old days of strict gender roles in society.

Monday, August 12, 2019

Can You Be Fired If Your Boss Finds Out You're Leaving, Or If You Give Notice?

So you told your boss you might be quitting. Or you gave notice that you're leaving in three months. Can your boss fire you or shorten your notice period? The answer is probably yes.

I assume you don't have a contract saying you can only be fired for cause. Assuming you don't, you're an at-will employee who can be fired for any reason or no reason at all. They can't fire you for an illegal reason, like discrimination, but can fire you for any other reason.

If your boss knows you won't be around much longer, then she can protect herself by looking for a replacement. Once your boss finds out you're leaving or even thinking about leaving, you're probably on your way out. From your boss's perspective, it isn't really fair to your boss to leave her in limbo about your plans. That means she is within her rights to hire someone to replace you and send you on your way.

I suggest you keep your plans to yourself until you are 100% sure. If you dither with the dates, yet telling her you'll be gone eventually, you have alerted her that she'd soon have a vacancy. The better plan is to wait until you've booked the moving vans and sold the house, then give a few weeks of notice.

However, even if you give notice, your boss doesn't have to honor it. You can be fired for giving notice, which is pretty stupid on the boss's part if you ask me. Who would ever give notice if they do this to employees?

To sum it up:
  • Your boss doesn't have to wait until you give notice. Once they know you're leaving, replacing you is fair game.
  • Your boss doesn't have to let you take back your notice. If you said you were leaving two months ago, then changed your mind, you are probably gone.
  • You don't have to call it "notice" or anything specific for it to be official. If you say you're leaving soon, you just quit.
  • Your boss can shorten your notice. If you say you're leaving in October, they can say goodbye to you in August. They don't have to let you work out your notice period. You're terminable at-will unless you have a contract saying otherwise. 
My one caveat is if you know of other employees of a different race, age, sex, national origin, or other protected category who were treated differently, then you might have a discrimination case. However, your damages would be limited to your notice period, so that may not be worthwhile pursuing.

Be careful what personal information you share at work. If your employer finds out you're planning on leaving, you may be out the door sooner than you think.

Monday, August 5, 2019

Some Florida Physician Noncompetes Are Invalid

For the first time in many years, the Florida legislature actually did something pro-employee. Well, at least, pro-doctor. Here's the new law:
542.336 Invalid restrictive covenants.—A restrictive covenant entered into with a physician who is licensed under chapter 458 or chapter 459 and who practices a medical specialty in a county wherein one entity employs or contracts with, either directly or through related or affiliated entities, all physicians who practice such specialty in that county is not supported by a legitimate business interest. The Legislature finds that such covenants restrict patient access to physicians, increase costs, and are void and unenforceable under current law. Such restrictive covenants shall remain void and unenforceable for 3 years after the date on which a second entity that employs or contracts with, either directly or through related or affiliated entities, one or more physicians who practice such specialty begins offering such specialty services in that county.
For doctors whose employer has a monopoly on an entire specialty practice area in a county, they will see some relief from noncompetes with this new law. It probably only helps those in rural counties, but it's a baby step in the right direction.

Of course there's a lawsuit. 21st Century Oncology has filed a lawsuit to stop the law. They lost their bid for an emergency injunction, but the suit is still pending.

I'll keep you posted if anything changes, but for the moment this is the law in Florida.

Monday, July 29, 2019

Recording Meeting In Office Protected by National Labor Relations Act

For those of us in all-party consent states like Florida, it's always an issue whether employees may record conversations with supervisors surreptitiously. Now employees have another weapon in their arsenal to support the legality of office recordings: the National Labor Relations Act (the Act).

In a recent decision, a National Labor Relations Board Administrative Judge held that a recording of a meeting where unionization was being discussed was both legal and protected by the Act, even though company policy prohibited such recordings:
Section 7 of the Act reads as follows: 
Employees shall have the right, to self-organization, to form, join, or assist labor 35 organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a 40 condition of employment as authorized in section 8(a) (3). 
29 U.S.C. § 157. Thus, employees have a statutory right to engaging in union and protected concerted activities, or to refrain from any and all such activities. Cf. Stanton Industries, Inc., 313 NLRB 838, 848 (1994) (noting the Board has “pointed out over and employees have the 45 right to engage in union activities, as well as the right to refrain from engaging in union activities, which rights are guaranteed by Section 7 of the National Labor Relations Act.) JD(SF)–21–19 14 
Regarding Mansour, I find that his actions were protected by Section 7 of the Act. In the January 9 captive-audience meeting Respondent was presenting its position to employees and attempting to persuade them to vote the Union out. Mansour had never previously been in a 5 union, he is dyslexic, and English is his second language. He decided to record the meeting to listen to it more carefully later and get a better understanding of what being discussed. Mansour was simply documenting the meeting in order to study Respondent’s position, so he could make an educated choice when voting to either retain or decertify the Union. Respondent argues his actions are not protected because he did not discuss his intentions to record the meeting with 10 anyone else. However, I find Respondent’s argument misguided.
The judge also found that the recordings were legal under Washington law because the subject matter, unionization, was not private and the employer could not restrict employees from discussing what happened in the meeting. Further, the judge determined there was no expectation of privacy in the meeting.

So, while this decision only applies where the meeting is about unionization or working conditions on behalf of coworkers as well as yourself, and only if you aren't in management, and only if you work for an employer covered by the Act (which is most non-government employers), it may keep you from being fired (or prosecuted) if you get caught recording a workplace meeting.