Donna’s Employment Law Predictions for 2012

I’m getting out my iPad’s magic 8-ball app and looking into the future. I see a big year for employment law issues in 2012. Here’s where I think we’ll see lots of litigation or legislation:

Military: With loads of returning military members, Congress will scramble to plug any new loopholes that keep military service people from being protected in their jobs. Look for lots of USERRA litigation when employers realize they don’t want to let the person who has been in the position go when Johnny comes marching home. Without a doubt.

Sexual harassment: Now that sexual harassment has become a hot-button political issue again, watch for attempts to weaken sexual harassment protections. Also watch the federal courts continue to erode what few protections employees have left. Will the Democrats have the will and the ability to stop sexual harassment from becoming legal? Very doubtful.

Retaliation: Retaliation has been hot, hot, hot, and it will continue to be so. Watch for attempts to weaken whistleblower laws, both legislative and judicial. While the courts have consistently enforced retaliation laws, they’ve been reluctant to rule in favor of employees in any situations where there was doubt about the legislative intent. For instance, the Fair Labor Standards Act doesn’t expressly prohibit employers from discriminating against potential employees who have sued former employers for overtime or unpaid wages. Watch for more courts to hold that the word “employees” doesn’t mean “potential employees.” Will there be a public outcry when potential employers refuse to hire people who demanded they be paid? My sources say no.

Bullying: No state will have the political willpower to pass anti-bullying laws, despite the growing evidence that bullying is more traumatic for employees than sexual harassment. It is decidedly so.

Tax relief: The Civil Rights Tax Relief Act will stall yet again, meaning that employment law settlements will continue to be taxed where personal injury cases aren’t. Try again later.

Unemployed: The unemployed will start to get some rights. More states will pass laws protecting the unemployed against discrimination. Employers will get more creative in denying them jobs by using credit checks and other excuses. Eventually, Congress will have to take action, but gridlock is likely in this election year. Outlook not so good.

Wage theft: As more employers decide the way to save money is to fail to pay employees or former employees, wage theft laws will begin to spread across the country. Maybe seeing a few deadbeat employers hauled off in handcuffs will be good for the economy. As I see it, yes.

Noncompete: Desperate employers trying to prevent employees from skipping to competitors who will treat them better and pay more money are using noncompete agreements as virtual indentured servitude. You’d think that elected officials would look at noncompete abuse and side with their constituents, but instead the trend is to give employers even more right to restrict competition. I predict more states will beef up employers’ ability to enforce noncompetes. The good news is that employees with resources will be using antitrust laws and the lack of legitimate interests to enforce to fight back. Noncompetes will continue to be the weapon of choice to bully former employees. Without a doubt.

Confidentiality and trade secrets: Agreements where employees promise to keep employer confidential and trade secret information confidential will go hand in hand with noncompetes as a weapon against former employees. Employees who never signed noncompetes will be told by former employers that working for a competitor would inevitable result in disclosure of confidential information. Will judges side with employees who resist indentured servitude? Don’t count on it.

Employees strike back: Working people and the unemployed will eventually wake up to what is happening to them. They’ll start standing up for their rights and demanding that their elected representatives work for them to restore their right to quit and work somewhere else, to get paid and not have a potential employer hold that against them, and that they be able to work free from sexual harassment. Will they do it in time for the November election? Ask again later.

VOW to Hire Heroes Act Fixes Stupid Legal Loophole for Military

Remember back in May when I wrote about a court that said harassing people at work for their military service was not illegal? The case was one where airline pilots who are military members sued after being mocked and ridiculed at work due to their military service. They sued for hostile work environment under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA says employers can’t deny any “benefit of employment” due to military service. “Benefit of employment” includes “advantage, profit, privilege, gain, status, account, or interest.” The 5th Circuit said USERRA “does not refer to harassment, hostility, insults, derision, derogatory comments, or any similar words. Thus, the express language of the statute does not provide for a hostile work environment claim.”

Well, if you were planning on harassing a subordinate or coworker because they’re in the military, you no longer have a green light. President Obama signed the Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011 on November 21, 2011. Along with lots of employer incentives and benefits for service people, this new law fixed the stupid loophole allowing harassment.

The Department of Labor hasn’t issued regulations on this yet, but the law is in effect now.

Maybe now Congress can fix some more loopholes in employment laws that end up with stupid results for non-military members. No? I didn’t think so.

Donna’s tips:

a. If you think you’re being harassed due to your military service, report it in writing to HR and give them an opportunity to fix the situation.

b. If the company doesn’t fix the situation and the harassment continues or you are retaliated against for reporting the harassment, you probably have a legal remedy now under USERRA.

c. Anyone who harasses someone due to their military service is a royal jerk who should be fired. I’m just saying.

So what do you think? Is this a good new law? Should you be allowed to harass people due to their military service? What other loopholes should Congress be working on? I’d love to see your comments.

Top 10 Things Not To Do At The Office Holiday Party

It's that most wonderful time of the year. Mistletoe, eggnog and holiday parties in the office make employment lawyers rub their hands together with glee. That's because we get very busy in January after all the party-related firings. There's sexual harassment, discrimination, recriminations, finger-pointing – all the stuff of nice legal fees.
Here are the top things you absolutely should not do at the office holiday party if you don't want to be sitting across a table giving your deposition or reviewing your severance package with an employment lawyer in the new year:

Read more on AOL Jobs.

Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!

Is My Offer Letter a Contract?

Heather submitted this question at Ask A Manager, and I thought it would be a good one to address here:

I was employed at a large successful company - while there, I got a call from a man who is a CEO of a smaller company offering me a job and saying he could beat whatever I was currently making. Long story short, I ended up taking the position in July at the smaller company and leaving my current position. Two weeks ago, the same man who hired me, also hired a sales manager who has convinced my boss that myself and 1 other rep are making too much money and he is trying to significantly lower our salaries and commission structure. My question is: if this man lured me away from my position at with an offer letter of more money and is trying to renege less than 6 months later, what are my rights? Is there a law that states how long an offer letter is good/enforceable?

Thanks
P.S. Not sure if it makes a difference but I live in Texas...

Heather, the bait-and-switch job offer is more common than you’d think. It happens all the time here in Florida, the center of con artists in the universe. Unfortunately, Texas, like most states in the nation, have at-will employment. That means that you can be fired, demoted, have your pay cut, or be disciplined for any reason or no reason at all.

Sure, the offer letter is probably a contract. It’s an offer and you accepted. There was consideration for it, namely, you started working. But what does that contract actually say? If it lays out your pay structure in writing and says it can only be changed in writing signed by both parties, then they can’t change it without your agreement.

If it says you can be fired at-will, then they can fire you for not agreeing. They can also fire you anytime for any reason.

If it says you can only be fired for cause, then what are your remedies? If the offer says you will be employed from x-date to y-date, then you should get paid out for the length of the employment. It might say that if you’re fired without cause you get a specific amount of severance. It might say that they can fire without cause with x-days of notice, in which case you get paid out for the length of the notice period.

One more possibility: fraud. If they had no intention of honoring the agreement when you were lured in, then you might be able to sue for fraud. It’s tough to prove, so things I’d look at are whether they’ve done the same thing to others. Is this a pattern? Is there some smoking gun or witness that would confirm they never intended to honor the offer? Or did the company have a sudden downturn after you started? If it’s a downturn, then there wasn’t fraud.

Donna’s tips:

a. If you are leaving a secure job for a new position, try to get some assurances in writing about job security. If they want you badly enough, they might agree to put in that they can only terminate for cause and some reasonable severance.

b. If you do get a contract, be careful what you sign. I’ve seen unscrupulous competitors lure top sales people over, have them sign non-compete agreements, then fire them a few months later. Surprise! You’re out of the industry unless you have the financial resources for a long legal fight.

c. Do your due diligence before you accept a job that sounds too good to be true. Google the new employer. Ask to speak to some coworkers before you accept. See if you can find some former employees (try LinkedIn, which lists former employers) to talk to about what their experiences were.

d. If you decline a unilateral pay cut and are fired or quit as a result, you might qualify for unemployment.

Have you ever gotten a job offer that wasn’t what it seemed? If so, did you take legal action or just leave as soon as you could? Do you think there should be some consequences to employers who make phony job offers? If so, what should they be?

I’d also love to hear from other lawyers and HR people, especially in Texas, to see if you have more advice for Heather.

Can My Employer Make Me Speak English, Even On Breaks?

I got this excellent question from flower on Ask A Manager recently:

Hi, I have a question about languages. I work in the shop as a sales assistance. I am from other country and there are working 5 more persons from the same country as me. So about 2 month ago my boss told for us that we can not speak in our language at all times even there are no customers around. Can they do that?

Thanks for asking, flower! This comes up a lot in areas, like South Florida where I live, that have a large immigrant population. Not surprisingly, EEOC has a section in its compliance manual addressing this specific issue because it is a common problem.

In general, English-only rules in the workplace are allowed if they are enacted for non-discriminatory reasons. Examples of good reasons to have English-only rules would be because customers, supervisors and coworkers speak only English; for workplace safety reasons such as emergencies where everyone needs to understand; to promote efficiency for cooperative assignments; and to allow supervisors who speak only English to monitor the employees’ communications with customers.

Examples of illegal policies would be:

• Prohibiting non-English speaking on breaks
• Subjecting speakers of foreign languages to excess scrutiny
• Prohibiting one particular foreign language from being spoken
• Requiring English-only if coworkers and customers speak multiple languages

Employers also must look at alternatives to English-only rules that might have less of a discriminatory impact. For instance, if an employee reports that two coworkers made derogatory comments about a customer in Sanskrit, disciplining the two employees would be the way to deal with the issue rather than an all-out ban on foreign languages.

Donna’s tips:

a. If your employer implements an English-only policy, the biggest question is why they did it. If they just don’t like hearing Spanish all day, too bad. That’s illegal. If there have been safety issues where an employee called out key instructions in Spanish and someone was hurt because they didn’t understand, then the employer might have a legitimate reason for the rule.

b. Sometimes having a few coworkers speaking a foreign language causes problems with other employees. Morale problems may develop as people think they’re being talked about behind their backs. This might also justify an English-only rule.

c. If you think your employer’s English-only rule discriminates against you based on national origin, it might be time to contact an employment lawyer, make a complaint of national origin discrimination with HR, or file a charge of discrimination with EEOC.

I’d love to hear from you on this. Does your employer have an English-only rule? Does it work or cause problems? If you’re an employer or management-side lawyer, have you ever implemented an English-only policy? Why did you think it was necessary? In general, do you think English-only policies should be banned or should employers be allowed to make any rules they want?

Congratulations to the Blawg 100!

I'm incredibly honored to have Screw You Guys, I'm Going Home named one of the American Bar Association's Blawg 100 of 2011. Out of over 1300 nominated, eight of my favorite labor and employment blogs were chosen along with my blog. Of those, I'm pretty sure mine is the only employee-side blog, so I'm extra honored.

Included in the list are:

Employment and Labor Insider by Robin Shea


The Employer Handbook by Eric Meyer

Arizoneout by Dinita James

Connecticut Employment Law Blog by Daniel Schwartz

Delaware Employment Law Blog by Molly DiBianca

Ohio Employer's Law Blog by Jon Hyman

FMLA Insights by Jeff Nowak

Work Matters by Mike Maskanka

If you haven't checked these out, you should. They're all well worth reading.

Thanks so much to everyone who nominated me. It really means a lot.

But it's not over. There are 12 categories of blogs, including Labor and Employment, and ABA wants you to vote for your favorite. You can vote once in each category. Registration only takes a minute and it's ultra-simple, I promise. You don't have to be a lawyer to vote.

What You Need to Know If You're Injured At Work

If you are injured at work, you probably can’t sue your employer. Instead, you’ll likely have to make a worker’s compensation (worker’s comp) claim. An employer who carries worker’s comp insurance is mostly immune for suits for workplace injuries.

Intentional injuries: assault, battery, defamation, and other intentional torts are usually not covered by worker’s comp.

Coworker liability: your coworkers are also likely immune from suit for workplace injuries if the employer has workers comp insurance. However, they could be personally liable for assault, battery, defamation and other intentional torts.

Making claims: you need to follow the employer’s claim procedure for worker’s comp claims. This usually means that you need to report the injury to your supervisor and they need to prepare an injury to report to file with the state worker’s compensation board. You need to notify them as soon as possible, providing the date of injury, witnesses, and how the injury happened.

Light duty: if your company has light duty, they may have to provide it to you and you will be able to get worker’s comp benefits that make up the difference. But many employers will deny that they have light duty and then you may lose coverage because you’re able to work. It’s important to speak with a worker’s comp attorney before you try to go back to light duty.

Work-related: if the injury happens at work or is related to work, such as when you’re running an errand for work, then it should be covered if it was an accident.
Retaliation: generally, your employer can’t retaliate against you for making a worker’s comp claim.

Donna’s tips:

a. Don’t delay if you’re injured. If you wait months before making the claim, your employer may not believe that you were injured at work. The sooner you make your claim, the better your witnesses’ memories will be.

b. Workers’ comp requirements are tough to navigate sometimes. If you have a serious injury, you probably need to talk to a worker’s comp attorney.

So, have you been injured at work? Were you retaliated against? How? Are you an attorney who has handled cases involving retaliation for making worker's comp claims? Did you get reinstated? Did the employer end up paying your lost wages? Did the legal system work or does it need fixing in this type of case? What needs fixing and how would you fix it? I'd love to hear about your experiences, good and bad.

What You Need To Know About Missing Work Due to Illness

Know your employer’s sick leave policy. Most employers require that you call in as soon as you know you won’t make it. No law requires paid sick leave.

Family and Medical Leave: applies if you have a serious medical condition and need several days off, or need intermittent leave for treatment.

Accommodations: if you have an illness that qualifies as a disability, you might be entitled to accommodations that will enable you to perform all the duties of your job.

Excessive absenteeism: unless you qualify for FMLA leave or have a disability for which you are seeking accommodations, your employer can fire you for any reason, including absenteeism. Know what they consider excessive. If you have to come to work sick, that’s better than losing your job.

Donna’s tips:

a. Lots of people express surprise that they were fired after being sick. “But I had a doctor’s note!” they say. A doctor’s note won’t help you unless you qualify for FMLA leave or an ADA accommodation. 90% of life is just showing up. (Woody Allen). Your employer is entitled to have you at work.

b. If you are contagious, then your employer requiring you to come in anyhow might be an OSHA violation. You can point this out, but don’t be insubordinate.

c. If ordered to come in, then rent a stretcher if you have to. Unless going to work endangers your life, comply with the boss’s order to come to work. Appeal to HR if you can, but don’t lose your job.

What You Need To Know About Your Employer's Health Insurance

No Federal law requires your employer to carry health insurance coverage for employees (a few states, like Massachusetts and Hawaii, are different). However, once they do have coverage, there are some Federal requirements employers must comply with. If your employment has ended, read the paperwork you get on COBRA to find out about your rights to continued coverage. If you're still employed or about to be employed, here's what you need to know about your insurance.

Non-discrimination: Your employer must not discriminate in providing or reducing coverage based on , for example, age, disability or pregnancy.

Plan description: The Employee Retirement Income Security Act (ERISA) requires your employer to provide a description of your plan and how to make claims.

Privacy of records: If your employer does have access to medical records, such as when it’s self-insured, it must comply with the privacy requirements of HIPAA.

Specific coverage requirements: Certain procedures must be covered once insurance is provided. For instance, if mastectomies are covered, then reconstructive surgery must also be covered. Insurance can’t restrict the length of hospital stays for the birth of a child to less than 48 hours for vaginal delivery or 96 hours for c-section.

Preexisting conditions: HIPAA limits exclusions for preexisting conditions to no more than 12 months, and allows plans to look back no more than 6 months. Pregnancy and genetic information can never be excluded. If you were covered by a prior plan and had less than a 63 day break in coverage, preexisting conditions won’t be excluded. Most children can’t be excluded based on preexisting conditions.

Health factors: You can’t be denied insurance or have benefits reduced due to your health status, physical or mental illness, claims experience, receipt of health care, medical history, genetic information, conditions arising from domestic violence, participation in hazardous activities, or disability.

Certificate of coverage: The employer must provide a certificate of coverage automatically at certain times, and upon request.

Young adults: Your plan must allow you to have your children covered up to age 26.

Lifetime limits: No lifetime limits on coverage are allowed anymore. Most plans won’t be able to have annual limits.

Rescission: If you become ill, the insurance company can’t look for unintentional mistakes on your application as an excuse to deny coverage.

Eliminate or reduce coverage: Your employer can eliminate coverage or change plans at will.

Donna’s tips:

a. Your employer has to disclose if it believes its plan is “grandfathered” and exempt from some of the new health care reform’s requirements. If it is grandfathered and significant changes are made to the plan, it might lose its grandfathered status and have new requirements.

b. Non-grandfathered plans must provide access to pediatricians and OB-GYNs and coverage of preventive services with no cost sharing.

c. Read your plan and understand it. Don’t wait until a crisis to understand your health care coverage and rights.

Yes, Conservatives, There Is Sexual Harassment

In the wake of the Herman Cain sexual harassment scandal, some conservatives are making outrageous and insulting statements about women who are sexual harassment victims. They ask, "Is there anyone who thinks sexual harassment is a real thing?" (National Review). "Experts" spout off nonsense like, "You know what sexual harassment is? You know what it really is? It's a political tool. . . . It's become an accredited way for malcontent women to score some money." (Rush Limbaugh) and "It always ends up being an employee who can't perform or who under-performs and is looking for a little green." (Laura Graham).

As an employment lawyer who has handled sexual harassment cases for 25 years, I want to make one thing perfectly clear: Yes, conservatives, there is sexual harassment. It's real. It happens every day. Twenty-nine percent of Americans say they've been sexually harassed at some point. And you don't want a world where it becomes legal.


SEXUAL HARASSMENT ESCALATES

Sexual harassment is almost never about sex. It's about power, plain and simple. Harassers, like rapists, like to exercise power over their victims. These are men (and sometimes women) who choose their victims carefully. They're sneaky. They know the danger of getting caught.

Read more in The Huffington Post. I'd love to see your comments there.





Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!

Can My Boss Hold My FMLA Against Me?

I received this question from calistair:

I have MS, every 4th Friday I have to take off work for a treatment. I recently asked to take 2 hours of PTO on a Friday afternoon. My supervisor responded via email with "The remainder of the group has covered Fridays for you". When asked twice via email what she meant, she came to my desk and verbally stated "On the Fridays of your infusions" I said "Oh no, that's under FMLA". This is 2nd time she has used my FMLA time against me. The first time, we were discussing the department budget and she told me that my reduced work hours (32.5/week) was causing others to work OT, which in turn has caused our department to be over budget. What can I do?

Now, obviously the first thing I advise is to talk to an attorney in your state. I’ll give you some general information on FMLA, which will hopefully help point you in the right direction in the meantime.

Based on your question, it looks like you’re on intermittent leave. FMLA allows up to 12 weeks of total leave in a calendar year, so if you need every 4th Friday off you are using 13 days of FMLA, roughly 2 ½ weeks. You are certainly covered under the law for this, assuming the employer has at least 50 employees and you’ve been there at least a year. Some states also have medical leave laws which might provide more protection.

Here’s what an employer can and can’t do while you’re on FMLA leave:

PTO use: Your employer may require you to take paid leave concurrently with their unpaid FMLA leave. All forms of paid leave are treated the same. Paid leave taken concurrently with FMLA leave could include vacation time, paid personal leave, and paid sick and medical leave. The employer may waive any procedural requirements for the taking of paid leave and you are always entitled to their unpaid FMLA leave even if you do not meet the employer’s requirements for taking paid leave. If the employer is not making you use your PTO for the intermittent leave, you should be entitled to use it like anyone else.

Retaliation: The employer is not allowed to use your FMLA leave against you. They can’t write you up for poor attendance, ding you in performance evaluations for excessive absenteeism or for failing to perform while you were on leave, demote you or fire you for taking leave. However, if they discover performance issues or dishonesty while you’re on leave (say a coworker covering for you finds out you embezzled millions), then they can fire you or discipline you. If the supervisor is retaliating, you probably want to report this to HR, in writing, as a “Formal Complaint of FMLA Retaliation.”

These are the two parts of FMLA that seem to apply to your situation. Other things you might need to know about FMLA are:

Perfect attendance: Employers may deny you a perfect attendance award for taking FMLA leave if employees taking non-FMLA leave are treated the same.

Contact with health care provider: Your employer may communicate with your health care provider to get information required by the FMLA certification form. The employer’s designated representative to communicate with the health care provider must be a health care provider, human resource professional, leave administrator, or a management official, but cannot be the employee’s direct supervisor. Employers are prohibited from asking health care providers for information other than what is required by the certification form. If the employer determines that a medical certification is not complete or is insufficient, the employer must provide written notification to you of what information is lacking and give you seven calendar days to cure the issue. Employers may request a new medical certification each leave year for medical conditions that last longer than one year. Employers may request recertification of a continuing condition every six months.

Fitness for duty: An employer may require the certification to address your ability to perform the essential functions of your job. In the event that reasonable job safety concerns exist, an employer can require a fitness-for-duty certification before you may return to work when you take intermittent leave.

There are many more requirements and responsibilities under FMLA that may apply to you. These are some of the most common issues. I hope this helps. Good luck!

What Is Color Discrimination And How Do I Prove It?

Even if your harasser is the same race, you can still complain about discrimination if they’re biased due to your color. Basically, color means the shade of your skin. If someone of your same race favors lighter or darker skinned employees, then that could be color discrimination. If your employer has 15 or more employees, then color discrimination is illegal under Title VII of the Civil Rights Act of 1964.

Evidence: how do you prove discrimination based on color? Biased comments by supervisors could be evidence that their decision was because of your color. Referring to you as being too tanned, too pale, or similar statements could show that they engaged in color discrimination.

Most supervisors aren’t that obvious. You can look at others treated differently under the same circumstances. If mostly darker people were kept on in a layoff and lighter employees are targeted, color discrimination might be involved.

Harassment: Anything that doesn’t affect you in the wallet is in the category of harassment. Your employer can’t make you miserable due to your color to try to get you to quit. You can’t be called names and made fun of due to your color either.

What to do?: If it’s harassment, you have to report it first under the company’s policy for reporting harassment and give them a chance to fix the situation. Only if they don’t fix it or if the harassment continues can you file a charge of discrimination with EEOC or your state agency.

If it’s an adverse employment action like denial of a promotion, demotion, suspension without pay, or termination/layoff, you must file a charge of discrimination with EEOC or your state agency before you can sue.

Donna’s tips:

c. If you’re presented with a severance agreement and think you’re targeted for layoff due to your color, contact an employment lawyer. They might be able to negotiate a better severance package for you.

d. Even if the boss is your same color, that doesn’t mean they can’t discriminate based on color. If they prefer lighter skinned employees over darker ones, or darker over lighter, it still might be color discrimination.

Everything You Wanted To Know About Your Employee Handbook (That You Didn't Bother To Read)

In most states, your company handbook isn’t a contract. They don’t have to follow their own procedures. However, some employers are starting to make employees sign them and add things like an agreement to arbitrate all claims against the employer or a waiver of jury trial.

You will want to read your handbook and understand your rights and responsibilities. Sections you’ll want to pay extra careful attention to are:

Discrimination policy: Where do you report discrimination? Who do you report it to if your supervisor is the discriminating person? If you’re a federal employee, your deadlines are extremely short, so be aware. Know your policies before you need them.

Harassment policy: Ignore that they’ll say to report all harassment. But do report harassment based on race, age, sex, national origin, disability, genetic information, religion, color, whistleblowing, making a worker’s comp claim, or taking Family and Medical Leave. Follow the published policy to the letter (except if it says to report verbally, make sure you also report in writing).

Sick leave/personal leave: Understand who you have to call and how far in advance. Don’t give them an excuse to fire you.

Family and Medical Leave: The employer has to publish the process you must follow to take FMLA leave. Make sure you follow all the steps and get them whatever medical certifications you need to provide.

Donna’s tips:

a. Knowing your handbook makes sense. These are the employer’s rules and you have to follow them.

b. Make sure you keep your copy of the handbook. If the employer wants you to sign saying you’ve received it but they won’t let you keep it, sign, then write, “saw briefly, not allowed to keep a copy.”

c. Pay attention to those updates that the employer sends around in memo form.

d. If it’s a contract for one party, it’s a contract for both. Be careful what you sign. If your company wants you to sign away your rights, have a lawyer take a look, or make sure you understand what you’re agreeing to.

e. If the company fails to follow its own policies, that might be evidence of discrimination or retaliation if they follow the policies for other employees.

Occupy Your Workplace: Changes To Employment Laws That Would Make a Difference

Just like the Tea Party on the other side, the Occupy Wall Street movement is on the brink of having real political power. Everyone wants to know -- what do they want? What changes will they ask for? With unemployment still hovering at 9% and people scared they will lose their jobs for blinking wrong, America needs real changes to its employment laws. When I wrote my article, 10 Workplace Rights You Think You Have -- But Don't, many commenters were angry -- with me. They thought I must be wrong. I wasn't.

It's time workers started paying attention to the laws that protect them, and the laws that ought to. As a lawyer who has practiced employee-side employment law for over 25 years and who has seen how bad law can devastate hard-working Americans, here are some changes I'd suggest if I were advising the Occupy Wall Street movement.

Read more in The Huffington Post. I'd love to see your comments there.



Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!

My Employer Defamed Me!

So your employer called you incompetent. Or you disagree with your write-up. You're hopping mad. It's a lie! You're ready to sue. Slander. Libel. It has to be something you can sue for, right? Meh. Probably not. Slander and libel are in the general category of defamation. Defamation is where your employer or former employer makes a false statement of fact about you to someone other than you that damages your reputation. But most statements, even false ones, probably aren't defamation.

Here's what you need to know about defamation in the workplace:

References: Some states have statutes protecting job references to some extent, but even then the employer generally cannot give out knowingly false information. A statement that the employee was an embezzler, ponzi schemer, or pedophile, made when the person giving the reference knew it was false, will probably not be protected.

Qualified privilege: Employers also have a qualified privilege, that is, one that can be overcome, to conduct an investigation of employee wrongdoing. For instance, if someone complains of age discrimination, the employer’s human resources person, attorney, and the named witnesses can speak about the investigation and will probably be protected. There are some ways to overcome a qualified privilege, so you’ll want to talk to an attorney even if you think the statement was privileged.

Publication: The information must have been “published” to a third party, which only means that it had to be said to someone other than you. Some states consider statements made inside the company not to have been published to a third person. A statement to you about you will never be defamation unless others were present to hear it.

Absolute privilege: Some communications can never be the subject of a defamation case no matter how knowingly false. These may include statements made in a legal proceeding, statements made to police, to administrative agencies (such as unemployment), and by government officials in the scope of their employment. I say “may” because this can vary by state and can be fact-specific.

Opinion: Statements of opinion are not defamation. If the employer simply says that the employee was a poor performer, the statements may well be of opinion, not fact. Statements like, “In my opinion, she was a pedophile,” will not get around the law of defamation.

Donna’s tips:

a. Employees can defame former employers too, so be careful. Corporations can be defamed just the same as individuals. If you have a blog, website, or make statements disparaging the company or their products, you should be careful to get your facts right.

b. Defamation claims against employers can be tough. Many judges just don’t like them.

c. Sometimes a cease and desist letter will accomplish more than a lawsuit. Getting the defamer to stop the statements might be more valuable to you.

d. If you are thinking about filing a defamation claim against an individual, be careful and make sure the person has assets that will make them collectible. Broke defendants can be frustrating when you try to collect.

Give Thanks To The Labor Movement

In honor of Jobs Week on AOL Jobs, I want to speak up in praise of an entity that has taken a beating this year – the labor union. Anti-union sentiment has spread from state to state, and union busting has become popular under the banner of money savings. Before your billionaire CEO convinces you that labor unions are bad, please don't forget what life was like in the bad old days before unions.

Maybe you don't remember the Triangle Shirtwaist Factory from your American History classes. I'll remind you.  . . . Read more on AOL Jobs.



 Thanks to Gina Misiroglu of Red Room for putting me in touch with AOL!

"Old Mother******" Gets to Take His Age Harassment Case to a Jury, Court Says

It's still not decided everywhere in America, but in the 5th Circuit (Louisiana, Mississippi, Texas) you can now sue your employer for age-based harassment. That's right. Up until now, employers argued that you could be harassed at work due to your age and couldn't do anything about it. And in some states, employers are still trying to make this argument with a straight face. Just another wacky day in employment law.
Here's what the 5th Circuit did. . . .

Read more in The Huffington Post.


Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!

Can My Employer Fire Me Because I Was a Domestic Violence Victim?

If you need time off for medical treatment or to seek an injunction against domestic violence, some state laws and city and county ordinances protect you, but most still don’t. Some states provide that employers must give you a leave of absence to deal with the effects of domestic violence. Other states have laws that protect crime victims if they need time off to go to court. A few states have laws saying you are entitled to unemployment if you have to leave your job due to domestic violence.

If you do have to testify and your state has little or no protection for you, then you might want to ask the prosecutor to subpoena you. Some states prohibit retaliation against witnesses who were subpoenaed to testify.

If you are injured and your employer is large enough, you might also want to seek Family and Medical Leave.

If male and female crime victims are treated differently at work, then you might have a sex discrimination case. For instance, if a male who was mugged is allowed time off, but a female domestic violence victim is not, then there may be a claim under Title VII or your state's sex discrimination laws.

Donna’s tips:

a. Domestic violence victims have to walk a fine line because of the huge numbers of people who will look down upon them and consider them weak. Be careful who you discuss your domestic violence situation with at work.

b. Don’t assume the law protects you from retaliation. Get legal advice if you’re unsure. The police may also be able to tell you whether you’re protected or who can advise you.

c. Don’t just blow off work. Make sure you let your supervisor know you’ll be out and for how long.

d. Don’t delay getting the help you need. No job is worth your life or safety, or the life/safety of your loved ones.

Potential Employees Beware: Some Employment Laws Hate Job Seekers

An ugly new trend is spreading in the workplace, and the courts say it's okay. If you're trying to get a job, employers can now discriminate against you in ways that current employers can't.

A Potential Employer Can Retaliate Against You For Suing Your Employer

The latest attack on potential employees comes out of the 4th Circuit, covering Maryland, Virginia, West Virginia and North Carolina. In the case of Dellinger v. Science Applications, the court ruled that a job applicant is not protected from retaliation under the Fair Labor Standards Act. The implications are frightening. Say you work for Scumbag Employer, Inc., which suddenly stops paying employees. You sue. You have the right to do so. You win. Scumbag Employer has to pay up. You're a hero, because your coworkers get paid too. If Scumbag Employer fires you for suing them, that's illegal. But once you decide to leave, beware.

In Dellinger, the court found that. . . . read more in the Huffington Post.



Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!

Can I Sue For Constructive Discharge?

Sometimes, people come to me and say they want to sue for constructive discharge. There’s no such cause of action or claim. Constructive discharge is where an employee quits work for good cause. This means some claims that you were illegally fired (worker's compensation retaliation, retaliation for complaining about discrimination, whistleblower retaliation, adverse action discrimination claims, to name a few) are still allowed if you’re constructively discharged. If you would have a case against your employer had they fired you under the same circumstances, then you will also probably have a case against them if a court finds you were constructively discharged.

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

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


Donna’s tips:

a. If your working conditions are intolerable, for heaven’s sake look for another job. Try not to quit until you have another job lined up. It’s easier to get a job when you have a job.

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

c. If the work situation is dangerous (rape, assault, unsafe conditions), then get the heck out of there. No lawsuit or potential suit is worth your safety.

Fake Job Offers, Phony Jobs and Employer Fraud

This question from Ask A Manager really struck a nerve for me:

Hi. I recently accepted a job offer via e-mail, handed in my notice with my current employers, a new e-mail then arrived stating my contract was being drawn up, then a few days later I receive a phone call retracting their job offer, what are my rights??? Please help.

You’d be surprised how often this happens. The mistake I see is that you gave notice before you got a signed contract. You shouldn’t give up your job unless your new offer is 100% final. That means contract signed if there is one, background check passed, and any contingencies have occurred.

It’s not unusual that people are duped into giving notice at their job, only to have the offer pulled or find out the job is nonexistent. Or maybe you’ve been lured into a job with promises of higher pay, better title, specific hours or location, and it turns out that the representations made to lure you in weren’t true. When this happens, you might have a case for fraud.

In order to claim fraud, the statement(s) must been false, and the company had to know they were false or be recklessly indifferent as to their truth or falsity. You must have relied on the false statements and changed your position. The company will probably claim that the person who made the representations believed them to be true at the time. Cases like this can require massive discovery, time and expense.

Another theory you might have to pursue against these unscrupulous employers is tortious interference with your employment relationship. I haven’t seen any cases attempting this type of claim, but it might be viable in your state. Basically, the theory would be that the phony employer interfered with your employment, knowing that you would lose your job, and that they were reckless or negligent in their behavior.

I’d be interested in hearing from other lawyers who have brought or defended this type of case to see what happened.

The sad truth is that, with at-will employment, you could work one day and they could decide you were a “poor performer” or “didn’t fit in.” Mostly, switching jobs is a high-risk activity. Be careful out there. Do your due diligence on the new employer. See if they make a habit of this type of behavior. Try to find out what kind of turnover they have. Speak to current or former employees if you can.

In my view, doing this to someone should be a crime. In this anti-employee environment, I suspect it won’t happen. Still, anyone who convinces someone to leave their job in this economy with pie in the sky promises that turn out to be phony deserves to spend some time behind bars.

Donna’s tips:

a.       Get that job offer in writing. Make sure you have everything you think is essential in it. If the recruiter told you that you’d only work Monday to Thursday and you need Fridays off for a class, either make sure they put it in writing or write them a letter or email confirming the information.

b.      If the job offer is contingent, don’t give notice unless all the contingencies have been met. If you have to pass a background check, wait until they tell you that you’ve passed, then confirm that information in writing. Tell them you’re relying on that information and will be giving notice at your current job. If you get a conditional offer and you need to discuss disability accommodations, get the accommodations agreed to before you quit your job.

c.       Don’t move your house without getting some guarantees that the job will last for a minimum period of time. It’s best to have a contract saying you can only be fired for cause if you’re uprooting your family.

Does Discrimination Still Exist? Of Course It Does

This piece by David Sirota in Salon struck a nerve with me. He makes the case that race discrimination still exists. Sad, but it's something that needs to be said over and over. I find the issue of whether any kind of discrimination still exists to be a continuing uphill battle when I represent employees in discrimination cases.

Truth be told, when I started handling employment discrimination matters 25 years ago, I figured I'd do it for a few years, then everyone would know the law and I'd have to find something else to do. Here I am, still handling discrimination cases. Instead of seeing them wane, I find that in some ways discrimination has gotten more blatant over the years.

Discrimination Exists

If you don't believe that discrimination exists, here are some facts that prove my point. Read more in The Huffington Post.



Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!

I'm Nominated to Lexis Nexis Top 25 Blogs!

Wow! Each year, LexisNexis honors a select group of blogs that set the online standard for a given industry.  Screw You Guys, I'm Going Home is one of the nominated candidates for the LexisNexis Top 25 Labor and Employment Law Blogs of 2011, featured on the Labor and Employment Law Community.

I'm incredibly honored to be included with such a great bunch of nominees. Lexis Nexis is inviting Labor and Employment law practitioners to comment on the list of nominees. If you’d like to support my nomination, please comment on the announcement post on the Lexis Nexis Labor and Employment Law Community.  You may click on the badge on the upper right hand of my blog and it will take you right there.

Each comment is counted as a vote toward the supported blog. To submit a comment, you need to log on to your free LexisNexis Communities account.  If you haven’t previously registered, you can do so on the Labor and Employment Law Community for free. The comment box is at the very bottom of the  blog nomination page. The comment period for nominations ends on September 12, 2011.  Lexis Nexis will then post the Top 25 Labor and Employment Law Blogs of 2011. Thereafter, the Lexis Nexis community will vote to choose the Top Blog through a Zoomerang survey. The final announcement will be made around the end of September. 

I'd sure appreciate your support. Good luck to all my fellow nominees!

My Company Is Involved In Illegal Activities. Can I Sue?

If you observe your employer engaging in certain illegal activities, you might be a protected whistleblower if you object to, refuse to participate in, or report the activities. In most cases, reporting illegal activities by fellow employees or supervisors against the company, like embezzlement or theft, won’t be protected. I won’t attempt to make an exhaustive list of every whistleblower statute, but almost all states have some. As a few examples, you’ll be protected if you report the following.

            Discrimination: if you report discrimination based on race, age, sex, religion, national origin, disability, genetic information, pregnancy, or color to HR, your supervisor, or EEOC.

            Safety violations: complaining to OSHA, seeking an OSHA inspection, participating in an OSHA inspection, and participating or testifying in any proceeding related to an OSHA inspection.

            Pollution: reporting pollution under various anti-pollution acts, or participating in or testifying in pollution investigations/proceedings.

            Securities fraud/shareholder fraud: providing information or participating in an investigation with the Securities Exchange Commission.

            Donna’s tips:

a.       Be careful if you’re reporting a coworker or boss ripping off the company, because you’re probably not a whistleblower. You can be fired if the company doesn’t like what you have to say. I’ve even seen employees accused of not reporting this type of behavior quickly enough.

b.      If you think something illegal is happening, look up the laws that apply and make sure you’re going to be protected before you report it.

c.       Sometimes to be protected you have to report the illegal activity to a government agency. Make sure you report it correctly so you’re covered.

If The Office Is Closed Due To A Hurricane, Am I Entitled To Be Paid?

With Hurricane Irene bearing down on the East Coast, I thought it would be important to address what the employer's obligations are if they close the office due to a natural disaster. Whether an employee is entitled to be paid when the office is closed depends on whether they are "exempt" salaried or not.

If an employee is salaried, it doesn't necessarily mean they are "exempt" from the requirements of the Fair Labor Standards Act. A federal regulation deals with this and other types of missed work for salaried exempt workers. Read more on AOL Jobs.




Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!

Employment Law Blog Carnival: Kindergarten Edition

The latest Employment Law Blog Carnival came out, hosted by the Ohio Employer's Law Blog. The theme? All I Really Need To Know About Employment Law I Learned in Kindergarten. Check out the latest and greatest blog posts by employment lawyers and HR people around the country. I'm there, as are many of my favorite blogs.

I Was Treated Differently From My Coworkers. Can I Sue For Discrimination?

            Most suits for non-harassment discrimination fall within the category of “disparate treatment.”  This means that you were treated differently than similarly situated employees under the same circumstances. You will have to prove:

            1.         You were in a protected category. These categories are race, age, sex, religion, national origin, pregnancy, color (meaning shade), genetic information and disability. Some states have other categories, such as marital status or sexual orientation.

            2.         You were treated differently than someone else in a different category under the same circumstances, or you were turned down for a position or promotion you were qualified for and it was given to a less qualified person.

            3.         You complied with the administrative requirements of filing with the correct agency.

            Your employer will have to come up with a so-called “legitimate reason” for the action they took. This doesn’t have to be a good reason, just one that might be motivated by something other than discrimination.

            Then, you’ll have to prove that the “legitimate reason” was really pretextual, and the real reason was discrimination. In the case of age discrimination, you’ll have to prove it was the only reason.

Donna’s tips:

a.       If your company is starting to document discipline on you, then keep good records of why their accusations aren’t correct.

b.      If you’re keeping notes, records or other documentation of discrimination, keep it in your purse or your pocket and take it home. Don’t leave it in a desk drawer. If you are fired, the company will keep it.

c.       Don’t assume your friends and coworkers will tell the truth. Most people will lie to save their jobs. Rely on your own documentation as much as possible.