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.

Tuesday, May 31, 2011

Six Ways You Might Be Discriminated Against If You Put Family First

While there's no specific law covering discrimination against employees due to family responsibilities, there are laws that may protect you if your employer is big enough.

1. Sick/disabled family members
If an immediate family member (or you) has a medical condition that requires regular doctor's appointments, you may well be entitled to up to 12 weeks a year of unpaid leave. This leave can be intermittent, which means that you get up to about 60 days a year or 480 hours. (That's a whole lot of doctor's appointments.)
This applies only if you need to miss work for a serious medical condition of a family member, AND your employer has at least 50 employees, AND you've been there at least a year.
If you know you will need this type of leave, make sure that you notify HR in advance so you make sure you're covered. If you think you qualify and they claim you don't, then contact an employment lawyer in your state to discuss your rights.
2. Sex stereotyping
There's no law making sexual stereotyping illegal, but it may fall within sex discrimination if your employer has 15 or more employees. For instance, . . .

Read the rest on AOL Jobs.

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

Tuesday, May 24, 2011

Unpaid Interns: Learning Experience or Illegal Exploitation? (Guest post on AOL Jobs)

I read Ross Perlin's recent editorial in The New York Times, "Unpaid Interns, Complicit Colleges," with great interest and not a small bit of dismay. As an employment lawyer who has represented employees for 25 years, I wasn't surprised to see that so many for-profit employers are still getting it wrong. The sad truth is that most unpaid internships at for-profit companies are probably illegal.

What did surprise me was Perlin's observation that so many colleges and universities are willing to look the other way at this practice. Yes, internships can be a great opportunity. But in this economy I think it's downright un-American that some unpaid internships are being used to exploit our young people and rob paid employees of their jobs. Fortunately, it's also illegal. The Department of Labor has made it clear that this sort of exploitation won't be tolerated.

It looks like some career office or guidance counselors might not tell you what an unpaid internship is and is not supposed to be. Students may assume that the career office wouldn't list an unpaid internship opportunity if it didn't comply with the law, but that's not a safe assumption.

Because so many students will be starting their internships in the next few weeks, I wanted to tell you about some top signs that your unpaid internship might be exploiting you:

Read the rest on AOL Jobs . . .

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

Sunday, May 22, 2011

Serving Your Country? Too Bad: Court Says It’s Legal For Your Employer to Mock Your Military Service

Airline pilots who are members of the U.S. Armed Forces Reserves and the Air National Guard 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 court found that 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.” Um, okay. So harassment and insults don’t affect your status at work? Apparently not.

Two circuits have recognized constructive discharge claims under USERRA, but this would require showing that no reasonable person could have tolerated the working conditions. That’s really tough to prove.

This was the first federal appellate decision on this issue, but some federal district courts have held to the contrary, so more courts will be weighing in on this issue.

In the new political climate of employee rights under siege, can we all at least agree that we need to protect those who serve our country? We should not allow employers to make our military members miserable at work due to their service to our country. Will Congress fix this? Or will they continue to allow employees, even those in our military, to be the victims of vicious political maneuvering?

Tuesday, May 17, 2011

Nine Signs of Age Discrimination (A Guest Post on AOL Jobs)

In my experience as an employment lawyer representing employees, I've found that the recession was particularly hard on older employees. They seem to have been disproportionately targeted in layoffs, and they have a much harder time finding new jobs.

Employers might assume you're close to retirement and don't need a job, but that's far from true for most Americans. They might also assume that older employees will miss more work or have more medical issues. Yet statistics show that older employees tend to be the most reliable. It's not only foolish to discriminate based on age -- it's also illegal for most companies to do so.

Who's Protected From Age Discrimination?

The Age Discrimination in Employment Act says that it's illegal for an employer to discriminate against you because of your age, but that only applies if you're age 40 or older, and only if the employer has at least 20 employees (or is a government of any size). Some states, counties and cities have laws that protect employees of smaller organizations. Some states also have laws that further limit age-based discrimination. Always check with an employment lawyer in your state when in doubt.

But How Do I Prove Age Discrimination?

Here are the top signs that you might be a victim of age discrimination:

See the rest of my post on AOL Jobs . . .

Thanks again to Gina Misiroglu of Red Room, who put me in touch with the AOL people!

Monday, May 16, 2011

Your Employer Can’t Discriminate Because of Your Bankruptcy (But Your Potential Employer Can)

The Bankruptcy Code says: “No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt . . . .” Seems pretty clear, huh? Ordinary mortals read the language “or discriminate with respect to employment against” to include discrimination in hiring.

The federal appellate courts, as we know, are not ordinary mortals. In a recent case, the 5th Circuit Court of Appeals found that this provision did not apply to discrimination in hiring. The employer withdrew a job offer after the background check revealed that she had filed for bankruptcy.

The court said, “Had Congress wished to bar private employers from discriminating against debtors in their hiring decisions, it could have done so by adding the phrase ‘deny employment’ to [the law] when it amended [the law] in 1994 and again in 2005.”

The 5th Circuit joined the 3rd Circuit in this reasoning.

Why the tortured logic? Well, it’s at least partly Congress’s fault (isn’t it always?), because they put hiring in a provision about government employers:

“[A] governmental unit may not deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated . . . .”

These two courts are assuming that Congress thinks like they do (they don’t) and they are failing to take into account that the two provisions weren’t passed at the same time. So sure, Congress could have included that language. But they’re ordinary mortals who assumed that the phrase “discriminate with respect to employment” meant what it says.

The 11th Circuit has a similar case in front of it, and these cases are popping up all over now. If another circuit decides differently, then the Supreme Court will have to decide which interpretation wins out.

In my opinion, employers who refuse to hire people just because of bankruptcies are idiots. What on earth does that have to do with their skills? Why exclude an increasingly large number of potential candidates just because the economy tanked?

In the meantime, Congress should immediately act to fix the darned law so their constituents aren’t denied employment just because they filed bankruptcy. Support for the change should have nothing to do with party lines. It’s the right thing to do.

Friday, May 13, 2011

Is Your Boss Reading Your Email? (A guest post on AOL Jobs)

(I posted this earlier in the week but Blogger lost it when the site went down, so I'm re-posting)

I did another guest post on AOL Jobs. This is what it was about:

Most people assume their emails at work are private. Those people are wrong. There are very few laws that protect you from email snooping at work, and most are pretty worthless and weak. That means you should assume your employer is monitoring your email and act accordingly.

If you get funny emails that are in bad taste, don't forward them. You might be accused of sexual (or racial) harassment. Don't write your lawyer on your work email. And for heaven's sake, don't send love notes to co-workers.

My rule of thumb is this: If you don't want it on the front page of the company newsletter, don't email it at work.

There Ought to Be a Law

Yep, there ought to be. And there is, sort of. The Electronic Communications Privacy Act of 1986 specifically says your company can't intercept your emails. The problem is,

Read the rest on AOL Jobs.

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

Wednesday, May 4, 2011

10 Workplace Rights You Think You Have -- But Don't (My Guest Blog Post on AOL Jobs)

This week I was a guest blogger on AOL Jobs. They must have liked my post since they've invited me to do more. Here's what it was about:

As an employment lawyer who has represented employees for 25 years, I find that everyone thinks they already know their rights. After years of watching shows like The Defenders, Fairly Legal and Damages, Americans have absorbed lots of legal information. Unfortunately, most of it is wrong. Before you mouth off to your boss about your rights, I thought I'd share with you the top 10 laws most employees think exist- that don't.

1. "I was wrongfully terminated."

Maybe if you lived in Montana you'd have a point. Montana is the only state in the nation with a law saying you can only be fired for just cause. Otherwise, you live in an at-will state. That means you can be fired for any reason or no reason at all. They don't have to have a good reason. They don't even have to give a reason in most states. Boss in a bad mood? He or she can fire you. HR didn't like the shoes you wore that day? Buh-bye.

Read the rest at AOL Jobs. Don't miss the comments. Lots of people shared war stories (including one guy who got fired because his employer didn't like his boots - and you think I make this stuff up).

By the way, Gina Misiroglu of Red Room put me in touch with the AOL people, which is one of the great ways she's bringing traffic to Red Room and getting attention for Red Room's authors. Thanks Gina!