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, April 27, 2023

New Laws Protect Pregnant and Nursing Workers

Two new federal laws that President Biden signed on December 29, 2022 will provide more protection for pregnant and nursing workers. While pregnancy discrimination is already illegal, these laws provide additional protection. 

Pregnant Workers Fairness Act: This law goes into effect on June 27, 2023 and applies to discrimination claims after that date. This law makes clear that employers with at least 15 employees must provide reasonable accommodations to pregnant workers unless providing the accommodation would cause an undue hardship on the employer. This makes pregnancy accommodations similar to disability accommodations, but pregnant workers only have to prove pregnancy, not a disability. The requirement of accommodation is triggered by a "known limitation" of pregnancy. 

This law clarifies the Pregnancy Discrimination Act, which didn't mention accommodations. The Supreme Court held in 2015 that employers must grant accommodations to pregnant employees if they provide such accommodations to other similarly-situated non-pregnant employees. The cases have been all over the place on this, so this new law makes the requirement very clear.

Cases under this law are handled the same way Title VII claims are handled.

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act): This law amends the Fair Labor Standards Act to require employers to provide reasonable break times to all nursing employees, and a private place to express breast milk. This law came into effect on December 29, 2022. Employers with less than 50 employees will be exempt if compliance creates an undue hardship. Employees who work remotely have the same entitlement to breaks as other employees and must be able to do so without being observed by employers. 

The Fair Labor Standards Act already provided for break time and private space for most employees, but this law expands that protection to employees who were considered exempt from overtime and remote workers. 

Breaks are only paid if they are less than 20 minutes or if the worker is not completely relieved from duty during the break. 

Employers who break this law or who retaliate can be liable for lost wages, liquidated damages, compensatory damages, other economic losses, and even punitive damages.

See what happens when you vote well? Keep voting well, and keep fighting for employee rights.

Thursday, April 20, 2023

Can My Employer Trash Me In Job References?

I constantly hear comments like, "I know my employer is only legally allowed to give out my dates of employment and job title." The people who say this are so sure this is the law. They're also wrong, wrong, wrong. They even get angry when I tell them they're wrong.

Here are six things you need to know about job references:
  1. Not one single federal law exists limiting what employers can say in references. I know you think you're sure about this law existing. You probably heard it from a friend or on TV. There is no such law.
  2. No state prohibits employers from giving out truthful information about an employee's job performance. There is not a single state law that I've found (and I'm sure my employment lawyer colleagues around the country will chime in if they know of one) saying that employers can only give out dates of employment and job title. Discussing job performance is allowed.
  3. Most states don't require employers to give any reference at all. Some vindictive employers will simply refuse to return calls from prospective employers. Employees who have to undergo background checks may be disqualified from a job just because a former employer refused to speak. While some states require employers to give out specific limited information, most require nothing at all from former employers. This can also be a problem if you need to apply for unemployment or public assistance.
  4. Some states require employers to give former employees a letter with specific information (varies from state to state). These states are California, Delaware, Indiana, Kansas, Maine, Minnesota, Missouri, Montana, Nebraska, Nevada, Oklahoma, Texas and Washington. You can check out each state's requirements here.
  5. Most states give employers some immunity from slander and libel suits. Each state's immunity is a little different, but employers in most states get a lot of leeway in what they can say about former employees.
  6. Truth is always a defense to a slander or libel suit. Even in states without immunity, if your employer gives out truthful information, you won't be able to sue for slander or libel. Truth is a defense. If your employer makes false statements of fact (as opposed to opinion), such as falsely saying you stole money or didn't meet quota, then you might have a defamation case against them.
When you leave, it's important to figure out what your former employer is going to say about you to potential employers before you start interviewing. Here are some things you can do to find out.

Ask: Some employers will tell you, if you ask them, what they will say to potential employers in references. Find out if, for instance, they'll say you're eligible for rehire.

Put it in an agreement: If you're presented with a severance agreement, one important point to negotiate will be neutral references. A contract where the employer agrees to only give out dates of employment and job title can be enforced.

Check the union contract: If you have a union, many collective bargaining agreements include a provision that the employer can only give out dates of employment and job title.

Look at your handbook: Many companies have a neutral reference policy. Some have a phone number or person where you're supposed to direct references. A company with a neutral reference policy will usually follow it. They have it for a reason. If you find out your former supervisor is violating the policy, complain to HR or the supervisor's boss. They may get in trouble, and will almost certainly be ordered to cut it out.

Reference-checking company: There are companies that will pretend to be potential employers and check references for you. They can give you a report about what your former employer is saying. If they're saying something untrue, you may want to get a lawyer to write a cease and desist letter for you. If they're breaching a non-disparagement agreement, you might be able to sue for breach of contract.

If you think your former employer is defaming you, or if they are breaching a non-disparagement agreement that they aren't allowed to say negative things about you, contact an employee-side employment lawyer in your state about your rights.

Thursday, April 13, 2023

DOL's New Rule On Classification of Employees Vs. Contractors Will Benefit Workers

 Last year, the Department of Labor announced a new proposed rule about how workers are classified as employees or independent contractors. The comments period has ended, so we can expect the new rule to be implemented any time. 

DOL noted, "As explained below, as used in this proposal, the term “independent contractor” refers to workers who, as a matter of economic reality, are not economically dependent on their employer for work and are in business for themselves." And that is exactly how it should be. Instead, employers are misclassifying employees as contractors to avoid the application of employment laws and to avoid paying employment taxes.

The new rule would actually revert to an older rule that has existed in interpreting the Fair Labor Standards Act. "The ultimate inquiry is whether, as a matter of economic reality, the worker is either economically dependent on the employer for work (and is thus an employee) or is in business for themself (and is thus an independent contractor). To answer this ultimate inquiry of economic dependence, the courts and the Department have historically conducted a totality-of-the-circumstances analysis, considering multiple factors to determine whether a worker is an employee or an independent contractor under the FLSA."

This new rule will benefit workers in several ways:

Greater protection under labor laws: Workers who are classified as employees are entitled to greater protection under labor laws. For example, they are protected by the National Labor Relations Act, which gives employees the right to form and join a union, the Fair Labor Standards Act, which sets the minimum wage and overtime standards, state and federal discrimination laws, and whistleblower laws.

Better pay and benefits: Workers who are classified as employees are typically eligible for a wider range of benefits and may be entitled to a higher minimum wage. For example, employees are typically entitled to overtime pay, paid time off, and health insurance, while independent contractors are not.

Improved working conditions: Workers who are classified as employees are entitled to a safe and healthy workplace. This includes protection from workplace hazards and discrimination. Employers are also required to provide reasonable accommodations for employees with disabilities. Employees can also unionize to negotiate for better working conditions. Contractors cannot.

No double taxation: Independent contractors have to pay double the amount of social security and medicare taxes. Employers pay half of these employment taxes for employees. 

Overall, the Department of Labor's new rule on worker classification benefits workers by providing increased job security, better pay and benefits, improved working conditions, greater protection under labor laws, and clarity for both workers and employers. By ensuring that workers are classified correctly, the rule helps to ensure that workers receive the benefits and protections they deserve.

If you think you are misclassified as a contractor, contact an employee-side employment lawyer in your state. You also can report your employer to the Department of Labor and the IRS. They may additionally be liable under state wage theft laws. 

Thursday, April 6, 2023

How Do I Prove I Was Laid Off Due to Age Discrimination?

 Older employees, along with the disabled and pregnant employees, are the most targeted employees in layoffs. There seems to be an assumption that the "old guys" will be retiring soon anyhow so it doesn't matter. It does. Targeting older employees is illegal. 

How do you figure out whether you were selected due to illegal age discrimination? Here are some factors to consider:

  • Comments: If your boss makes comments about age, that's direct evidence of discrimination. As an example, referring to older employees as, "geezer," "old man," or "pops," may indicate age discrimination. It can be more subtle. Saying the company wants a "young image," asking questions about your energy level, asking when you intend to retire, or saying you may not be able to keep up with the new changes can all be evidence of age discrimination.
  • Different treatment: If you are selected as one of the employees to be laid off but younger, less qualified employees are kept on, then that is also evidence of discrimination. Let's say the position requires a certification. You have it but the younger employee is working to get it. You're more qualified. That is evidence of age discrimination. Seniority can also be a measure of your qualifications. If you've been in the position for 20 years with all good reviews and the younger employee has only held the job for a year, that's a good indication that age discrimination is occurring.
  • Different options: If you are told you have to take the severance, where other younger employees are given the option of stepping down to a lower paying position, or transferring to a different department, then that could also be age discrimination. On the issue of stepping down versus taking the severance package, if it's offered to you, that's a decision you need to weigh carefully. If your retirement benefit (assuming you work for the rare company that still has one) is measured by your last year or several years' pay, then you may want to go for the severance package if offered. On the other hand, if you aren't vested in some benefits or can't retire yet and only have a few years left, stepping down may be the best option. This might be a good time to meet with your accountant or a financial planner to discuss the best options for you.
  • Disparate discipline: Since the company is looking at disciplinary history, if you are suddenly targeted for discipline for picky things that younger employees also do and aren't disciplined for, then that is another sign that you are being targeted due to your age.
  • Check that list: In a layoff employers should attach a list of the job titles and ages of people who were selected for layoff, and those kept on. It might show a pattern of age discrimination.

If you think you're being targeted due to your age, talk to an employment lawyer in your state. Sometimes discrimination can give you leverage to negotiate a better severance package.

Thursday, March 30, 2023

Can I Secretly Record A Conversation At Work?

I thought I'd discuss a question today that I'm asked all the time in my law practice: Can I record a conversation with my employer?

Unfortunately, there's no easy answer to this question, and a mistake can land you in jail. Illegal tape recording can have both criminal and civil penalties. My advice is almost always: When in doubt, don't.

Still, many employees want to record a boss or HR at work, and there are good reasons to do so. If you have a sexual harasser, it's handy to catch them red-handed. It's hard to deny something a judge or jury can hear in the harasser's own voice. Some employees want to record meetings with HR to make sure they get all the important information or to have evidence of the reason given for termination or discipline. Other employees want to get evidence of discrimination or other illegal practices of the employer. Sadly, while you can go to jail if you illegally record a conversation, even of a bigot, there is no law making workplace discrimination a crime in the U.S.

Here's what you need to know about recording conversations at work:

All-party consent: Eleven states, California, Connecticut, Florida, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington, require all parties to the conversation to consent to being taped. Illinois' all-party consent law was found to be unconstitutional. Hawaii, a one-party consent state, requires all-party consent if the device is installed in a private place. Massachusetts bans "secret" recordings. These laws are sometimes referred to as "two-party consent" laws, but if there are three people in the conversation, all three must consent. The Digital Media Law Project has a handy state-by-state resource here. The Reporter's Committee for Freedom of the Press has another detailed state-by-state guide here.

Expectation of privacy: You can almost always record conversations in public areas, because the courts say there's no "expectation of privacy" in those places. Whether or not you are a party to the conversation, if it's out there in public, you may be allowed to tape it. Here's where it gets tricky. Many courts have held that there's little or no expectation of privacy in the workplace. There are cases saying, for instance, that a party to a conference call has no expectation of privacy. If you're in a group meeting at work, is there an expectation of privacy? Possibly not.

As an example, cases in my home state of Florida on the expectation of privacy at work say things like: "Society does not recognize an absolute right of privacy in a party's office or place of business." "[A]lthough defendant may have had reasonable expectation of privacy in his private office, that expectation was not one which society was willing to accept as reasonable or willing to protect." "Society is willing to recognize a reasonable expectation of privacy in conversations conducted in a private home. However, this recognition does not necessarily extend to conversations conducted in a business office."

The problem I have with relying on cases like these to tape at work is the use of weasel-words like "necessarily" and "absolute" and "reasonable." These cases are very fact-specific and that means a court could still find that your boss or coworker had an expectation of privacy. If you get it wrong, you can end up in jail. 

If a meeting is held with a large group of employees, doors open so others can hear or wander in, then I feel pretty comfortable that there's no expectation of privacy. Otherwise, I suggest talking to an employment lawyer in your state about making such a recording.

Unfair Labor Practices: The National Labor Relations Board has waffled on whether employers can ban all recordings at work. In 2015, they said no, such recordings can't be banned. Then in 2021 they said sure, employers can ban recordings. This current board would probably say recordings can't be banned. But since the case law changes depending on who appointed board members, I wouldn't risk criminal prosecution based on this.

Retaliation: If you record a conversation to document illegal discrimination or illegal harassment (we're talking harassment or discrimination based on race, age, sex, religion, national origin, disability, pregnancy, or other protected category, not bullying), then you may or may not be protected against retaliation by your employer. The courts have split on this issue. Depending on your state, your employer may be allowed to fire you for recording a conversation at work.

One-Party Consent: If your state is a one-party consent, you still have to be a party to the conversation in order for a recording to be legal. If you aren't, you can't just place a recording device somewhere at work to record secretly. That's illegal in every state.

Phone Calls: The all-party consent states all make recording phone calls without consent of all parties illegal. There's no expectation of privacy exception for phone calls. Fifteen states require all-party consent of phone calls. The one-party consent states that ban such recordings are Delaware, Illinois, Oregon, and Vermont. A state-by-state guide is here.

To summarize, you can probably tape a conversation at work that you're part of as long as you live in one of the 39 one-party consent states. You can also possibly tape a conversation that's in a public area (lobby, office or conference room with doors open, stairwell). You can maybe tape a conversation in the office behind closed doors. Only 35 states allow recording of phone calls with one-party consent. If you get it wrong, you're in big trouble, so be careful.

My best recommendation in all-party consent states continues to be, when in doubt, pull out your recorder and turn it on. Say, on the recording, "You don't mind if I tape this do you?" If the other person or people say they don't mind, keep recording. If anyone objects, turn it off. Pull out a pad of paper and a pen and take good notes instead. No potential case against your employer is worth risking jail time.

Thursday, March 23, 2023

How Do I Get A Copy Of My Noncompete Without Alarming Management?

 You don't have a copy of your noncompete and can't figure out how to get one without asking management, who would definitely penalize you just for asking. You want to leave but the only option you think you have would be a competitor. Or you signed a bunch of documents you didn't read when you started called stuff like Confidentiality Agreement or Bonus Agreement and now you think you might have signed a noncompete.

If you’re a regular reader of my blog, you know that I always recommend you get a copy of everything you sign. This is a good example of why. How are you supposed to know what your restrictions are if you don’t have a copy of your agreement?

But you didn’t keep a copy of your noncompete agreement, and now you have to figure out how to get a copy without alarming HR and management. There are several ways you might try. You’ll have to figure out which one works best in your company culture:

Ask to look at your personnel file: While some states have a law saying companies have to give you access to your personnel file, most don’t. There's none here in Florida. Still, sometimes employers will allow you to review your personnel file if you ask. Hopefully, the noncompete will be in there. What excuse do you give for asking? You could say you want to see what deductions you listed on your W-4, review your insurance election, or take a look at your last review as some examples of what might give you a non-alarming excuse to review the file. Of course, they could just be nice and give you a copy of the document you say you’re looking for, so this might backfire.

Ask a coworker for theirs: If you have a coworker you trust who keeps better records than you, you might ask them to share their noncompete agreement. Yours is probably similar, but if you started different years or have different jobs, the two agreements could be quite different. If you’re sure that everyone has the same agreement, this is a possibility that might work for you.

Look at court records: If your employer sues former employees for noncompete violations, then pull the case file. The coworker’s noncompetition agreement should be attached to the very first document, called something like a “Complaint.” This only works if you’re pretty sure the coworker had the same agreement as you.

Ask someone friendly in management: Sometimes, your boss or a friend in HR may be willing to get you a copy on the sly.

Ask for the agreement: I know you don’t want to tell an unfriendly supervisor or the evil HR lady you need a copy, but this is the only straightforward way to get a copy of your actual agreement. You might say you lost your copy and want to make sure you have a copy for your records (and this is completely true) or try to come up with some other excuse. Or, you can wait until you get a job offer and then ask for it. That way, you at least have a place to go if you get fired because they think you’re looking to leave.

What do you do if they refuse to give you a copy? I think it’s silly, but some companies like to hold onto the noncompete agreements employees have signed like they’re the secret recipe to KFC, but I don’t understand this. Companies should want employees to know what their post-employment restrictions are. HR folks should make sure employees keep a copy for themselves. How can they comply if they don’t know what the restrictions are? Nobody has ever been able to explain this to me.

If this happens to you, and you have a job offer or actual plans to start a business, I suggest sending them something like this: “It is my understanding that I do not have any restrictive covenants that would keep me from working for a competitor or forming my own business. If this is incorrect, please send me a copy of any and all agreements I signed or am alleged to have signed while employed by you within 72 hours from the date of this email. If I do not receive the alleged agreements by that time, I will assume I have no restrictions and will govern myself accordingly.” Obviously, this will set off alarm bells like crazy, so I don’t recommend this unless you have somewhere to go.

Sounds like lots of trouble to go through all this, huh? Next time, make sure you keep a copy of anything you sign at work, and make sure you take it home or keep it in your briefcase so they can’t grab it if you are fired. And don’t forget to read it carefully before you sign so you know and understand your post-employment restrictions. The time to negotiate is before you sign.

Thursday, March 16, 2023

What Can I Do If I Lost A Job Due To A Background Check?

 If your employer or potential employer is going to run a credit check, then they must comply with the Fair Credit Reporting Act. This requirement covers anything the employer is getting from a consumer reporting agency that covers personal and credit characteristics, character, general reputation, or lifestyle, but not the HR department running your name on Google, checking out your Facebook page, or reading your blog. So it depends on who did the background check.

If they are going to run a background check that is considered to be a credit check, and they are hiring an outside agency to do it, they have to give you a document solely for the purpose of telling you they intend to conduct a credit check. It was possibly shoved in with a stack of papers they handed you with your application or pre-employment forms. They need your permission in writing.

They must also tell you if they’re about to deny a job, reassign, or terminate you because of what was disclosed in a credit report. They must give you written notice with a copy of your credit report and a document called "A Summary of Your Rights Under the Fair Credit Reporting Act.”

Once the employer decides to use the report against you, they must then give another notice, this time telling you the name of the agency that did the credit report, saying the agency isn’t the one that made the adverse decision, and telling you how to dispute the information in the report with the agency. This notice can be verbal or in writing, unless you’re a trucker, in which case it must be written.

If an employer runs your credit history though a third party agency without permission, they’ve broken the law. 

But let's say they run the background check themselves. They check your social media and find out, for instance, your race, that you have a disability, that you have a family history of a genetic disease, or that you're pregnant. They aren't allowed to turn you down for a job or fire you on that basis. That's illegal discrimination, and you might have a discrimination case.

If they find an arrest or conviction record, then there are some states that don't allow them to use this against you. Florida is not one of those states. EEOC has taken the position that a blanket refusal to hire based on criminal records can be discrimination, but I haven't seen any cases supporting such a claim. If you are, for instance, male and a female with the same record is not excluded but you are, that could certainly be a discrimination claim.

If they find out you sued a prior employer for discrimination and refuse to hire you on that basis, that could be illegal retaliation and you might have a claim for violation of anti-discrimination laws.

If you think any of this applies, contact an employee-side employment lawyer in your state for advice on how to proceed.