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.

Wednesday, June 29, 2011

15 Things You Need to Know About Disability Discrimination

If you have an impairment that substantially limits a major life activity, you might be covered under the Americans With Disabilities Act. Many people are confused about their rights and responsibilities if they have a covered disability, and whether or not they are covered.
Here are 15 things you need to know about disability discrimination

1. Covered impairment
Your impairment can be physical or mental. Homosexuality, pregnancy, weight, and height are not considered disabilities. (Pregnancy is covered as a separate type of discrimination.) The disability doesn't have to be permanent. Temporary impairments that. . . read more on AOL Jobs.

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

Friday, June 24, 2011

One Remark Does Not Make A Discrimination Lawsuit

 I get people who come to me at least once a week who had someone make a comment or ask them a question and they think they’ve won the lottery and they can retire. They haven’t, and they can’t. They seem shocked, even angry when I tell them this. Like I make up the rules. I didn’t. Do you really think someone who represents employees for a living would think up such a thing? My rule would be that one comment means the employee and their lawyer could retire. That’s probably why I don’t get to make the rules.

One comment will almost never, standing alone, make a discrimination lawsuit.

Even an extreme statement, such as a racial epithet, disgusting sexual joke, pornographic email, or illegal interview question won’t be enough to go running to the courthouse. There has to be more. 

Adverse action. Termination, demotion, suspension without pay, failure to hire, anything that affects you in the wallet, might be enough to show discrimination along with that one remark. For instance, if your interviewer asks you whether you have any disabilities and then hires someone without a disability, you might have a case for disability discrimination. If your boss makes a comment about women with kids needing to stay home, then fires you as soon as he finds out you’re pregnant, you might have a pregnancy discrimination case. This will only make a difference if the person making the remark is a supervisor who actually participates in the decision to take adverse action against you. 

Severe or pervasive. Anything short of an adverse action is considered harassment. For harassment to be something you can sue for, it has to be either so severe or so pervasive that it alters the terms and conditions of your employment. That means there would have to be many, many remarks, jokes, comments or differing treatment to rise to the level of illegal harassment. Remarks by coworkers will affect the terms and conditions of your employment less than remarks by your boss. 

Evidence. That one remark is still evidence. If it related to your protected status, such as a racial epithet, then it’s direct evidence of discriminatory animus. That’s a fancy way to say it’s really good evidence that the person saying it didn’t like you because of your race, age, sex, disability, etc. If they then do something that affects you in the wallet, or if they continue making these types of remarks, then you might have enough for a case down the road. 

Report it. You should report remarks that directly relate to race, national origin, color, religion, age, sex, disability, genetic information or other protected status under the company harassment policy. Put it in writing. 

Stray remarks. The courts call the rule that applies to all this the “stray remarks doctrine.” Frankly, they let employers get away with a whole lot. Some of the cases that get dismissed on this basis are pretty severe. But hey, don’t blame the messenger. It’s not my rule. Tell your member of Congress if you think the rule is wrong.

Some people tell me they were so traumatized by one remark that they can never go back to work there. Okay. I mean, really? I guess if you have severe depression going into the situation I might buy that. But c’mon. Get a grip. People say awful things sometimes. You can’t let one remark ruin your life. If you turn tail and run, you’re giving the bigot exactly what they want.

If you really have to quit to save your sanity or health, by all means, quit. But don’t blame me when that means you don’t have a case for discrimination.

Donna’s tips: 
a.   While one remark isn’t going to get you a big, fat check, it’s evidence. Write it down with the date and any witnesses. If this person keeps it up, keep writing it down.

b.   If you do decide to report comments, don’t go run to HR every day. Document any remarks and take them to HR after you have a few. While you might report the first remark, if they don’t take action to stop it, then don’t make yourself a nuisance. Do report any acceleration of the behavior or any retaliation.

c.  You have to report harassment before you can even go to EEOC, and you have to file with EEOC before you can sue. Don’t skip the steps or you’ll have your case tossed. 

d.   Bullying isn’t illegal. If the comments don’t relate to your race, age, sex, national origin, etc. then don’t report them unless you’re being singled out for differing treatment compared to others of a different race, age, sex, national origin, etc. 

e.   Certainly don’t quit, especially after one remark. The courts will almost never let you sue if you do.

Wednesday, June 22, 2011

11 Things to Know Before You Sign an Independent Contractor Agreement

Many employers try to save money on taxes and escape liability under employment laws by getting employees to sign Independent Contractor Agreements. There are some advantages to being an independent contractor, but most people labeled as contractors are really employees. Here are the top 11 things you need to know before (or even after) you sign an Independent Contractor Agreement:

1. Intellectual property. If you are creating art, written work, computer programs or other creative works, then it may be an advantage to you to be an independent contractor. Generally, you own the copyright to works created as a contractor. However, be very careful when . . . read the rest on AOL Jobs.

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

Monday, June 20, 2011

Five Reasons Why The Wal-Mart Decision Doesn't Affect Your Discrimination Case

There’s been lots of hoopla over the Wal-Mart v. Dukes class action case that the Supreme Court just decided. You may have heard how the decision was a serious blow to class action discrimination cases. Maybe you’re worried about your own discrimination case and have some concerns that the Supreme Court decision somehow affects your chances in court or with EEOC. 

The Wal-Mart case involved a class of 1.5 million female employees, nationwide, who were denied promotions and pay increases. The class plaintiffs claimed that the retail giant’s policy of allowing local managers to make promotion and pay decisions within their own discretion resulted in a statistically disparate impact on females across the entire company. For instance, they argued that women filled 70% of the chain’s hourly jobs but held only 33% of management employees. They claimed that . . . read the rest on AOL Jobs.

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

Thursday, June 16, 2011

Top 10 Things You Need to Know If You're Sexually Harassed at Work

You're not alone if you are confused about workplace sexual harassment. You may suspect you're being sexually harassed but aren't sure what to do. Or maybe you're being harassed because of your gender and don't realize what you're experiencing is illegal sexual harassment.

Here are the top ten things you need to know about sexual harassment at work:

1. Don't quit.

Many employees quit as soon as the first incident of sexual harassment occurs. They're too embarrassed or scared to go back. That's perfectly understandable, but if you quit, you might be giving up your sexual harassment claims. The Supreme Court says that,  read more at AOL Jobs . . .

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

Tuesday, June 14, 2011

8 Things Every Employee Should Know About Trade Secrets

You might have read about the suit PayPal filed against Google and two of its former executives, accusing them of stealing trade secrets. But you don't need to be a high-ranking executive to get caught up in a trade secret suit these days. It's common for companies to have employees sign an agreement saying they won’t take trade secrets or confidential information when they leave. Many employees wrongly assume that, just because they never signed an agreement, they can take their employer’s customer list or other confidential information and use it to form their own business or give it to their new employer.
On the other hand, most company information is not a trade secret. Even if you did sign a confidentiality agreement, some information isn’t protected. Whether or not you signed an agreement regarding your company’s trade secrets, every employee is affected by trade secret law. Here are some things you need to know about trade secrets and your employment:
  • Independent value. It’s only a trade secret if the very fact of it being unknown to competitors makes it have independent value. In other words, if it would be something a competitor would value, then it might be a trade secret. If you are the safekeeper of the KFC secret recipe or know the formula for Coca Cola, it’s a no-brainer that you have a trade secret. But competitors might find other, less obvious information valuable, such as client lists, manuals, or pricing.
  • Kept confidential. Your company will almost always claim that their customer list is a trade secret. Yet many companies brag about customers on their websites. Some even put their whole customer list, pricing, brochures and manuals out there on the web. If the company put it on the web, it can’t be a trade secret. Same with anything they put out in the public. If they put their “secret recipe” into a charity cookbook, goodbye trade secret. If they apply for a patent for the information, the information becomes a public record and is no longer a trade secret.
  • Not available through public sources. If the way your company gets its business is through cold-calling the yellow pages, business directories, Chamber of Commerce listings, or Google, then they probably can’t protect their customer list. If, for instance, you sell widgets to airplane manufacturers, your potential client list is a finite one. If you search for “airplane manufacturer” on the web and can generate a potential client list, the courts will probably say you’re allowed to do so when you work for a competitor.
  • Not available for purchase. If your company gets leads from a purchased source, the leads are not a trade secret. Let’s say everyone in your industry gets leads by an email alert that they pay to subscribe to, so that when an event occurs that causes your customers to need you, everyone who pays gets an email and the first to contact the customer or the one with the best price wins. That’s treated the same as a publicly available source. It isn’t a trade secret.
  • Not ascertainable. Just because the company keeps it under lock and key and thought of it first still doesn’t necessarily make it a trade secret. For instance, if the company compiles a “secret database” of leads, but their compilation consists of buying up yellow pages, Dun and Bradstreet listings, and a chamber of commerce directory and merging them into one list, it’s not hard for a competitor to come up with the same list. The information has to be something they used considerable time and expense to put together, and that a competitor wouldn’t be able to figure out on their own.
  • Noncompetes and trade secrets. Noncompete agreements can only be used to protect a legitimate interest of the employer, such as trade secrets. The one thing a noncompete agreement can never be used for is to prevent competition – that’s antitrust and a violation of federal and most state law. If your noncompete agreement says its purpose is to protect the company’s trade secrets, then the company can only enforce it if you had access to actual trade secrets.
  • Don’t do it. If you had access to a trade secret, you can’t blog or tweet about it. You can’t email it to yourself and use it. You can’t give it to your new employer. You can’t give or sell it to a friend.
  • Bully tactics. Some companies will use an employee’s access to trade secrets to bully them into not working for a competitor or going out on their own. When the employee announces they’re leaving, the company lawyer sends a letter threatening the employee with a trade secret suit. Many employees get scared and stay or get jobs outside their industry because they can’t afford to fight or lose their jobs. Just because you had access to a trade secret doesn’t automatically mean you can’t work in a competing business. Most company information isn’t a trade secret.
If you signed a confidentiality agreement or had access to something you think might be a trade secret, get advice from an employment lawyer in your state about your rights and responsibilities before you accept a job from a competitor or copy the information to use after you leave.

Thursday, June 9, 2011

About to Be Terminated? 10 Things You Must Do to Protect Yourself (My post on AOL Jobs)

You've been called into the boss' office. Human Resources is there. Uh-oh. Your hands get a little shaky. Your blood pressure shoots up. You feel the panic rising. You're definitely not thinking straight. When they deliver the bad news, your mind goes blank. What do you do?

Don't panic. Here's a quick reference of things to do -- or not -- to help you think clearly when you get the news that you've been fired or laid off.


1. Do work as long as you can.

If they are giving you the option to work for a few more weeks or months, do say yes. It's way easier to get a job when you have a job. Take that time to send out resumes and pound the pavement. Just make sure you still do your job while you're there, and don't start copying trade secrets or confidential information. That will just get you into trouble.

2. Do ask about getting your personal items.

Many people leave their belongings behind. Security or HR might have to accompany you, but do get your stuff. They aren't allowed to keep your belongings. On the other hand, if it's in your work computer, your company phone, a company notebook, or something else they own, it's theirs. They don't have to let you print or copy anything that's in their property.

If it's important, keep it in your briefcase, your purse, or at home so that this doesn't happen. If you've, for instance, been keeping a log of every sexually harassing comment that was made, you may lose it now. That's why you never keep it on your work computer.

3. Do ask about your insurance.

Are they cutting off your insurance that day, at the end of the month, or later? If you have an upcoming doctor's appointment or surgery, you need to know ahead of time whether or not you'll be listed as covered.

If coverage is getting cut off, it will be reinstated retroactively once you elect COBRA and make your payment. If you paid your share of insurance through the end of the month, remind them. They may extend your insurance at least through the time you've paid, or refund you the difference.

For more do's and don'ts during your termination meeting, check out my post on AOL Jobs.

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

Friday, June 3, 2011

Can My Potential Employer Discriminate Against Me Just Because I’m Unemployed?

Unless you live in New Jersey, the answer is yes. New Jersey is the only state in the nation so far that has passed a law against unemployment discrimination. The EEOC held hearings on the issue because they are concerned this type of discrimination might also have an adverse impact on minorities, older employees, the disabled, and women. As an example, African-American and Hispanic unemployment rates are much higher than Anglo unemployment rates.
            Still, many employers refuse to even consider you for unemployment unless you have a current job. You’d think in a climate with huge unemployment rates hovering around 10% that employers would realize they’re eliminating a large segment of qualified candidates, but HR is slow to change its practices, even in a recession.

            The good news is that the Fair Employment Act, pending in Congress, would prohibit this type of discrimination. New York also has pending proposed legislation to ban unemployment discrimination. I predict that more states will follow. With states trying to cut the number of people collecting unemployment, it makes pure fiscal sense to ban this type of discrimination.

            Donna’s tips:

a.       If you see an ad that says you must be employed to be considered, but you think you’re qualified, apply anyhow. If you’re turned down for a less qualified candidate, then find out if that person is of a different race, age, sex, national origin, etc. If so, you might have a discrimination claim.

b.      Some people are forming their own companies while unemployed to do consulting or other contract work. That way, you can say you’re employed by your company. The downside is that this might affect your ability to collect unemployment benefits, so check with your state unemployment office about this.

Wednesday, June 1, 2011

Think Sexism Doesn’t Exist? Read This

I did a post on AOL Jobs about family responsibilities discrimination, and wow, was I shocked at the comments. When people get to comment on the Internet anonymously, their mental filter gets set in the “off” position sometimes. I know some judges and my colleagues on the management side think these kinds of attitudes don’t exist anymore. But employers tend to be on their best behavior in front of their lawyers and in court. They’re shocked that they could be accused of such a heinous act.
Well, here’s what some of those corporate clients and management-side discrimination defendants really think. Even after 25 years of practicing employment law, I didn’t expect employers and managers to post comments like these. I left off the user names to protect the guilty, but you can go to the post and see them for yourself.
How would you like to have this guy as your boss?:
Maybe you should have thought of that before you spread your legs and became a walking sperm bank. If you can't afford to take the time to deliver a baby, maybe you can't afford to have a child at all. A business is an entity designed to produce a product or service in order to produce a profit. It is not a social service agency, a rehab agency, or a day care. The business was not created in order to create jobs. The jobs come as a result of the success that the company has enjoyed as a result of producing it's product or services. You do not have a right to co opt my business interests in order to facilitate your desire to procreate or your failure to control your desires. Just keep pushing this feel good stuff onto business and watch your jobs flee to China and India.
Or this one?:
Pregnancy is a very temporary medical condition. But soooo many women take full advantage of it in the workplace and elsewhere, demanding to be treated in special ways and to be given a lot of slack when it comes to work production, dependability, reliability, attendance, and/or tardiness. This puts a lot of extra work on the shoulders of non-pregnant workers and the managers. "Is Susie Broodmare going to show up for work today? Or will she say she has to leave four hours early for a doctor's appointment for the third time this week? Will she say she feels uncomfortable so can't do her job at all today but expects full pay?" It's well past time for pregnant women to be held accountable for their decision to get pregnant so that it doesn't adversely affect others, especially in the workplace.
Susie Broodmare. How lovely. I wonder if that’s what he calls them in the exit interview.
This guy better have a very small company or he’s a defense lawyer’s nightmare:
As an employer, I think the running of my business comes before your personal problems and if I think I can hire someone better than you, more dedicated than you, with no medical or family problems, you're fired. Take responsibility for yourself and don't expect your employer to subsidize your lifestyle choices. Want to take off 12 weeks to have a baby? Than you better be absolutely brilliant at your job if you expect it to be there when you come back. Otherwise, someone else will be sitting in that chair. I don't owe you anything but the pay check you worked for and whatever else we agreed on when you were hired. Nothing more.
How about this one?:
This is pretty incredible. So I can apply for a job with a great big baby-belly and say, "I saw your help wanted sign, so I'm applying for your 15th position. Here's the deal. I'll let you train me and pay me, then as soon as I'm "line-ready" I'm taking off for as long as I see fit to have my kid leaving you short an employee AGAIN" and any business I walk into HAS to hire me or risk government BS? It's no wonder the corporate world is getting the Hell out of America!
This one is a real charmer, and smart too: “I dont think YOU have right in working in somebodyelse Company, than you become pregnant. Its your businnes and your partner businnes.. once you step out.. you need to use what you save. No mercy. Let's be real..... You want family (boths) have pay the price...”
This one posted lots of comments. Here are some of my faves: “Noone else but the employee is responsible for making sure that they are ready and able to work. If you want to work for a company with very lax absentee policies, then go find one. Society suffers when we have to assume the responsibility for those who do not prepare and plan for pregnancies/illness etc.”
If they can't afford it, they shouldn't get pregnant. What ever happened to PLANNING a family? If one had to sacrifice and reduce a lifestyle, then that is what has to happen. Society cannot bear the responsibility for individuals. A womans husband can provide the income while she goes through pregnancy. Now we most certainly have couples who PLAN pregnancies knowing that they will get time off and other considerations, thus burdening our economy.
This one doesn’t like you if you’re pregnant or disabled: “If you have a family AWESOME!! But ON THE JOB! If at any time I feel your physical condition or health will impeede your ability to work efficently and professionaly then I will either let you go or simply not hire you.”
AND “If you are pregnant Sorry NOT hiring you. Not because I am thinking "oh god I will hire them only to loose them" But because again in MY business it is a safety issue. I can not afford the insurance claim if a dog jumps on you and hurts you or your unborn baby.” (He’s identified himself enough that some lawyer is probably issuing a subpoena for his IP address as we speak).
Bravo, management. Bravo. I hope your employees figure out you posted these comments and sue the stuffing out of you.