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.

Friday, May 31, 2013

Can My Employer Enforce A Noncompete When We Get Our Customers Through Bidding?

Noncompete laws vary from state to state, but whether in a state like Florida where noncompetes can frequently be enforced or in a state that is more employee-friendly, if an employer wants to enforce a noncompetition agreement, it will have to prove a legitimate interest to protect.

In Florida, the statute allowing noncompete agreements also says: “Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.”

Florida’s noncompete statute defines the term “legitimate business interest” to include: (1) trade secrets, (2) valuable confidential business or professional information that does not qualify as a trade secret, (3) substantial relationships with specific prospective or existing customers, clients or patients, (4) customer, patient or client goodwill, and (5) extraordinary or specialized training.

In one Florida case, the court said, “any competition by a former employee may well injure the business of the employer. An employer, however, cannot by contract restrain ordinary competition. In order for an employer to be entitled to protection, there must be special facts present over and above ordinary competition. These special facts must be such that without the covenant not to compete the employee would gain an unfair advantage in future competition with the employer.”

How does this apply if you get your customers through competitive bidding?

Courts have refused to enforce noncompetition agreements in Florida where the employer did not have substantial relationships with specific prospective or existing customers. If the customer is putting jobs out for bid, your employer may have a tough time showing it has substantial relationships with them. If they make purchases with whichever vendor is cheapest or makes the best offer, the courts may refuse to enforce your noncompete agreement. A request for a bid sent out publicly is pretty much like an ad in the yellow pages: anyone can respond, including your employer's competitors.

Where a court may draw the line is if you participated in preparing a bid for your employer, then use that confidential information to prepare your own bid for the same job undercutting them. That’s because you have valuable confidential business information about that bid. However, if you leave your employer and put in bids for jobs you weren’t involved with when you worked there, you may be okay.

Nothing in noncompete law is black and white. It’s pretty much all shades of gray. But employers try to enforce noncompetes that aren’t supported by a legitimate interest all the time. If you think your employer shouldn’t be able to enforce your noncompetition contract because customers are obtained through competitive bidding, talk to an employment lawyer who is familiar with noncompete agreements in your state to discuss your rights.

Friday, May 24, 2013

13 Things Every Teen Needs To Know About Workplace Rights

School’s out for summer! Or it will be soon, and many teens will start summer jobs or even their very first real job. Yet schools do little, if anything, to prepare teens for the realities of the workplace. I’m always shocked when I encounter teens whose parents drag them to me after they suffer workplace abuse with no idea they have any rights at all.

So, if you’re a teen entering the workplace or thinking of applying for a job, read this. If you’re a parent, friend or relative of a teen who is entering the workforce, please print this and show it to them.

Here are 13 things teens need to know about workplace rights that their school probably didn’t teach them:

1. Minimum Wage: Federal minimum wage is $7.25 per hour. However, there is something called the youth minimum wage, which means that for the first 90 calendar days of any new job you can be paid as little as $4.25 per hour if you are under 20. State minimum wages may be higher. Here in Florida, the minimum wage is $7.79. Tipped employees may be paid a minimum wage of $2.13/hour as long as their wages including tips equal at least the higher of the state and federal minimum wage. State minimum wages for tipped employees vary. In Florida, it’s $4.77/hour. More details about wages can be found here.

2. Hours: If you are under 16, under Federal law your work hours are limited. You can’t work during school hours at all, and you can’t work more than 3 hours on a school day, including Friday; more than 18 hours a week when school is in session; more than 8 hours a day when school is not in session; more than 40 hours a week when school is not in session; and before 7 a.m. or after 7 p.m. on any day, except from June 1st through Labor Day, when you can work until 9 p.m. Federal law doesn’t limit work hours for teens 16 or older, but your state laws may. For instance, Florida law says if you’re under 18 you can’t work during school hours (with exceptions), and that if you’re 16 or 17 you may only work up to 30 hours per week, not before 6:30 a.m. or later than 11 p.m. and for no more than 8 hours a day when school is scheduled the following day, and for no more than 6 consecutive days.

3. Breaks: Federal law doesn’t require any work breaks. However, many states require work breaks, especially for workers under 18. In Florida, workers under 18 are not allowed to work more than 4 consecutive hours without a 30 minute uninterrupted work break. For breaks of more than 20 minutes, employers don’t have to pay. Breaks 20 minutes and under are hours worked that need to be paid.

4. Sexual Harassment: If your boss, coworker, customer, vendor or potential boss is harassing you because of your gender or gender identity, that’s sexual harassment, and it’s illegal. This includes unwanted sexual advances, requests for sexual favors, offensive comments about men or women in general, off-color jokes, touching, and other harassment that is either so severe or so frequent that it alters the terms and conditions of your employment. A single offhand comment may not be sexual harassment, but a single incident that is severe could be. As a minor, you have added protection. Any adult sexually harassing you is probably committing a crime, and could be a sexual predator. It is really important that you read the company’s sexual harassment policy when you start working and write down where you are supposed to report it if it occurs. You don’t have to be afraid, and you should not let yourself become a victim. People you can and probably should report sexual harassment to are your Human Resources department at work and your parents. If you’ve been touched, then you may want to contact the police. If you see someone else being sexually harassed, you should report it. Harassers will keep doing it, and their behavior will get worse, unless an adult stops them.

5. Contracts: In most states, if you’re under 18 you can’t be bound by a contract, including an employment contract. You (or your parents) can void a contract you’ve signed while underage. However, once you turn 18, you probably can’t void it anymore. Employment contracts might have provisions saying you can’t work for a competitor for a year or two, waiving your right to a jury trial, confidentiality obligations, and other important clauses. If you are asked to sign a contract, always read it and keep a copy once you’ve signed. If you don’t understand it, talk to your parents or an employment lawyer in your state about it.

6. Internships: While many teens take unpaid internships for the summer, most employers get internships wrong. If your internship is not a real learning experience for you, then you probably have to be paid for the work you do. An internship is supposed to be training similar to that you would receive in a vocational school. Filing, stuffing envelopes, and answering phones should normally be paid. Internship assignments should build on each other so you develop more skills, similar to the way each chapter of a textbook builds on the other. You should be getting training that benefits you, and you should be getting more benefit than the company. If they can make money off what you're doing, or if you're saving them from having to pay another employee, you probably have to be paid.

7. At-will: If you live anywhere but Montana, your employment is probably at-will, meaning your employer can fire you for any reason or no reason at all (with some exceptions). They can fire you because they’re in a bad mood, because they didn’t like your shirt, or because you lipped off to them like you lip off to your parents. Exceptions that would make a firing illegal include firing due to discrimination, making a worker’s comp claim, and blowing the whistle on illegal activity of the company. If your boss tells you to do something that isn’t illegal (or sexual harassment), then do it. No eye-rolling, back-talk or attitude.

8. Social Media and Cell Phones: You are expected to work during work hours. That means no texting, emailing, calling, tweeting, instagraming, facebooking, downloading, or surfing at work, unless it’s work-related. If you check your texts, emails, or social media on a company computer, cell phone or other device, the company probably has the right to look at it. If you view or send inappropriate pictures, jokes, or videos, you can be fired for doing so. There is very little privacy in the workplace, and you have few rights. Assume you’re being watched at all times at work and you won’t go wrong. Oh, and remember all those party pics and embarrassing photos you posted before you started applying for work? Employers and potential employers can see them. You probably want to check your social media pages and pull down anything you can that might be inappropriate for an employer to see.

9. Human Resources: If your employer is big enough, you probably have someone who is designated as the Human Resources person or a whole department called “Human Resources.” It may be referred to as HR. This is the place to go for information about work rules, to report sexual harassment or discrimination, and you’ll probably have to go there on your first day to fill out a stack of forms. While they can be very helpful if you have questions or concerns, they aren’t your buddies. Human Resources represents your employer, not you. They aren’t your mom or your best friend, so don’t go to them with every petty complaint, confess you did something wrong, or tell them about the wild party you went to over the weekend. Keep it professional.

10. Discrimination: Discrimination against you for being you isn’t illegal. However, discrimination and harassment due to race, sex, sexual identity, national origin, disability, religion, color, pregnancy and genetic information are. In some states, there are more categories of illegal discrimination. For instance, in Florida it’s illegal to discriminate against you because you’re too young or because of marital status. Whether sexual orientation is a protected category depends on your state and local law. No federal law bars sexual orientation discrimination.

11. Bullying: While your school might have zero tolerance for bullying, your workplace may be a bullying free-for-all. No federal or state law exists that prohibits workplace bullying. However, workplace bullies are very much like school bullies: they focus on the weak and the different. If you need to complain about a bully, make sure you do it in a way that’s protected. If the bully is picking on the weak, are they weak because of a disability, pregnancy, or age? If they’re picking on the different, is the difference based on race, national origin, age, or religion? If you report illegal discrimination, the law protects you from retaliation. If you report bullying, no law protects you.

12. Dangerous Work: It is every employer’s duty to maintain a safe workplace. If you think your workplace is unsafe, you can contact the Occupational Safety and Health Administration (OSHA) to report dangerous conditions and get more information. Certain jobs are deemed too hazardous for teens under 18 to do. A plain English description of the 17 jobs considered too dangerous for minors is here. There’s a different list for agricultural work that applies to workers under 16.

13. What Kind Of Work You Can Do: Depending on your age, there may be limits on the type of work you can do. If you are under 14, you can work, but your options are limited. You can deliver newspapers, babysit, act or perform, work as a homeworker gathering evergreens and making evergreen wreaths, or work for a business owned by your parents as long as it’s not mining, manufacturing or one of the occupations designated as hazardous. If you are 14 or 15, you can do things like retail, lifeguarding, running errands, creative work, computer work, clean-up and yard work that doesn’t use dangerous equipment, some food service and other restaurant work, some grocery work, loading and unloading, and even do some work in sawmills and wood shops. We’re talking non-manufacturing and non-hazardous jobs only. If you are 16 or 17, you can do any job that isn’t labeled as hazardous.

The Department of Labor has a website where you can get more information about employment laws that apply to teens. An interactive advisor about federal law may be found here.

Of course, my book Stand Up For Yourself Without Getting Fired can help anyone new to the workplace since it covers how to handle workplace crises and issues from the interview and application, to your first day and that giant stack of papers, to workplace disputes, to promotions, to termination, and even post-termination.

Wednesday, May 15, 2013

Employment Law Blog Carnival, We Are Family Edition

It's time for me to host the ever-enlightening Employment Law Blog Carnival, that wonderful monthly collection of the best employment and HR blogs in the blogosphere. Because I hosted this time last year, I'm not doing yet another tribute to Mother's Day. Instead, I looked for a less obvious holiday to celebrate with this new edition of ELBC.

May is National Family Month, so welcome to the We Are Family edition of the Employment Law Blog Carnival.

Lorene Schaefer in Win-Win HR points out that we aren't too different from our monkey relatives, in that we know when we're slighted and don't appreciate it. Her post,  Screw You And Your Cucumber Too - Even Monkeys Demand Equal Pay for Equal Work (love the title - can you guess why?) tells employers why they shouldn't monkey around with equal pay.

Dads are entitled to paternity leave, but Randy Enochs in Wisconsin Employment & Labor Law Blog bemoans the fact that Study Shows That Few Dads Take Advantage of Paternity Leave. C'mon dads. Take the time to bond with the new baby.

Every teenager knows you don't give out your social media passwords, especially to family members. So why does NJ Gov. Christie want your password? In NJ Gov. Christie Vetoes Proposed Workplace Social Media Law, Eric B. Meyer in The Employer Handbook explains why the big guy didn't like the law prohibiting NJ employers from asking for employee social media passwords. And really, why wouldn't you want to trust a NJ politician with your passwords?

Families are changing, and so must the law. Heather Bussing, in HR Examiner, tells what to do When An Employee Says I'm Gay.  It's a terrific step-by-step how-to for everything from terminology and applicable laws to bathrooms and workplace violence.

Your Canadian relatives have probably headed back home from their winter hideaway in my state by now. We Floridians will miss them so. Stuart Rudner offers the Canadian perspective (which is way, way better for employees) in the Canadian HR Reporter with Employment Agreements Avoid Awkward Hiring Situations. They can help here too, so Stuart's article offers helpful advice to any employer who is preparing an offer letter to a new employee.

Thanksgiving dinner isn't the only time we should be reminded about all the genetic glitches in our families. In The Emplawyerologist, Janette Levey Frisch does two posts on GINA, that very confusing law about genetic information discrimination. In What Does GINA Have To Do With Employment Law Practices, she breaks it down for you and tells you why you should care about this relatively new and misunderstood law. In How Are Employers Faring (In Court) Under GINA, she enlightens us on some recent cases employers won, and a pending case that may "stick" against an employer.

Every family has one black sheep, and sometimes that's because of drug use. Ari Rosenstein in CPE HR's Small Biz HR Blog tells businesses what they can do about drug abuse in the workplace in Substance Abuse and the Drug-Free Workplace Act.

Most of us here in South Florida have family or friends from other countries. It makes living here way more fun and interesting, but Homeland Security is watching those immigrants when you do your hiring. Nilesh Patel of the Mahadev Law Group blog updates us on the new forms employers must use to verify that employees are legal to work in the U.S. in New I-9 Forms.

Our Canadian brothers and sisters prove they can one-up us in something besides hockey. In A Workplace Harassment Case for the Record Books, Dawn Lomer in the iSight blog shares a story of a poisoned workplace atmosphere that Canadians found shockingly illegal (but would probably be just another case of legal workplace bullying here, sad to say). Oh, Canada. Why can't we follow your lead? Except the mayo on fries. You can keep that.

Just in time for National Family Month, Philip Miles in Lawffice Space tells a cautionary tale about working for family, especially if they don't like your sudden spiritual awakening, in 3d. Circuit: Shareholder not "Employee" Under Title VII.

Just like children, you must teach your employees well. Michael Haberman in the HR Observations Blog implores employers to Teach Employees About Sexual Harassment.

Many families have that embarrassing relative who can't stop with the racial slurs at family gatherings. Fortunately, the law protects you if your supervisor spews out racial slurs. In Fitzpatrick on Employment Law, Robert Fitzpatrick tells about a case where one racial slur was enough to create an illegal hostile environment in Racial Slur Sufficient to Support Claim Against Fannie Mae.

Nobody wants to hear Uncle Hal droning on and on about nothing, and your employees don't want to attend trainings that go on and on about nothing either. In Designing an Engaging Workplace Harassment Training, Stephanie Hammerwood in Blogging4Jobs talks about how to get employees to actually pay attention to all those expensive harassment trainings you send them to.

Mario Bordogna in Employment Essentials explains how the DC Circuit is as annoying to NLRB as your siblings are to you in Following Noel Canning, The DC Circuit Again Overturns NLRB Action & Invalidates Notice Posting Requirement.

Every parent knows you need to teach the kids what they should and shouldn't post in social media. One of my favorite verbal sparring partners, Jon Hyman, offers some good advice to employers about social media training in the Ohio Employer Lawyer's Blog in With Social Media, All Of Your Employees are Brand Ambassadors; Train Them Accordingly. Of course, employers can always turn over their social media passwords to NJ Gov. Christie and let him handle it . . .

Family loves to give advice, and so does the NLRB. John Holmquist, in Michigan Employment Law Connection, analyzes NLRB advice on confidentiality in NLRB "Advice" Concerning Employer Investigations.

Do-it-yourself projects can cause lots of family strife. Same if you try to write a do-it-yourself employee handbook. In the DamnedIf blog (love the name), Adam Whitney explains why in Using Standard Form Employee Handbooks; Damned If You Do, Damned If You Don't.

There's really nothing worse for a parent than outliving a child. In the Musings blog, Crystal Spraggins explains why grieving parents should be covered under FMLA in Proposed Amendment to FMLA Would Provide Leave For Grieving Parents.

Health care is important for any family, since there's no quicker way to go bankrupt than to enter a hospital while uninsured. My associate, Ryan Price, did a terrific guest post (I'm not biased at all) right here in my blog, Screw You Guys, I'm Going Home, on how employees will have new protections soon against employers who discriminate based on employee health care decisions in The "New" Discrimination: Retaliation Based on Health Care Rights.

That's all for the We Are Family Edition of the Employment Law Blog Carnival. Join us again next month at a different location for the best employment law blogs, together in one handy place.

Friday, May 10, 2013

The “New” Discrimination: Retaliation Based on Health Care Rights

Guest post by Associate Attorney who now chooses to be anonymous, Donna M. Ballman, P.A., Employee Advocacy Attorneys

If you don’t already know, the Affordable Care Act (“ACA”), a/k/a Obama Care, does not take effect all at once. (I say “if you don’t already know,” because a recent poll shows that 42% of Americans are unaware that Obama Care is currently the law of the land).

Title I of the Act, which is considered one of the most controversial parts of the Act, does not take effect until next year. Once it takes effect, employers may not make employment decisions based on an employee’s health care decisions. Employers will, of course, make decisions that impact employees negatively, because the ACA will increase employers’ costs and responsibilities associated with health care. This is why employees need to be aware of their new rights.

You have probably heard about the many employers who have started cutting employee hours to evade having to comply with Obama Care. If you’re one of them, you’re out of luck. The law doesn’t protect you yet.

Starting on January 1, 2014, an employer may not retaliate against you based upon your health care selections. Specificallyan employer cannot terminate, demote, discipline, intimidate, threaten, deny benefits or promotion, reduce pay or hours, blacklist, or fail to hire an employee based on the fact that the employee:

  • Provided information relating to any violation of Title I of the ACA, or any act that he or she reasonably believed to be a violation of Title I of the ACA to the employer, the Federal Government, or the attorney general of a state;
  • Testified, assisted, or participated in a proceeding concerning a violation of Title I of the ACA, or is about to do so; 
  • Objected to or refused to participate in any activity that he or she reasonably believed to be in violation of Title I of the ACA; or 
  • Received a credit under section 36B of the Internal Revenue Code of 1986 or a cost sharing reduction under section 1402 of the ACA. 
If an employer retaliates against you for engaging in any of these activities after January 1, 2014, you may file a complaint with the Occupational Health and Safety Administration (“OSHA”). OSHA has a broad range of powers to help employees combat the “evildoer” employers, including the powers of investigation, enforcement, negotiation, settlement, and the ability to award damages. The employee’s first, and critical step, is to file a claim with OSHA within 180 days from the date of retaliation.

Unlike most employment discrimination cases, the standard for proving retaliation in these cases is much more employee-friendly. You only need to demonstrate you had a reasonable belief that the employer was retaliating against you. Further, you will only need to provide evidence that your health care decision was a factor in the retaliation, not the only factor in retaliation. Hopefully, employers will have a much more difficult time defending against these types of discrimination cases. With any luck, this will deter them from violating the ACA in the first place.

Check in with us next year for updates on this law and a breakdown of the inevitable lawsuits to follow its implementation in 2014.

Friday, May 3, 2013

Non-Compete Agreements Can't Be Used to Prevent Competition

Whether you work in the copy room or in a corner office, you may have been presented with something called a Non-Competition Agreement. Or maybe it was called something sneakier, like a Confidentiality Agreement or Intellectual Property Agreement. Whatever it was called, it said you can't work for a competitor of the company for a year or two after you leave.

If you haven't been forced to sign one yet, beware. They're all the rage with management these days. Physicians, managers, executives, professionals and employees are often given the choice: sign or be fired.

While companies claim all kinds of reasons why they want a non-compete agreement from their employees, there's only one reason they really want it: to prevent a competitor from luring you over to work for them. They want to do everything they can to inhibit and prevent competition. But they will almost never admit that's the real reason.

Why not? Because preventing competition is the one reason that will never, ever justify a non-compete agreement.

While every state has different laws regarding enforceability of noncompetes, most allow them in some form or other. I'll use Florida's as an example, since I'm most familiar with it.

Florida law says:
542.18 Restraint of trade or commerce.Every contract, combination, or conspiracy in restraint of trade or commerce in this state is unlawful.
 This law is similar to the Federal equivalent, the Sherman Antitrust Act, which makes all contracts, combinations, and conspiracies that unreasonably restrain interstate and foreign trade illegal. There are both civil and criminal penalties for violations of the Sherman Act and the Florida antitrust law.

The Florida noncompete statute is a very specific exception to the antitrust laws. It says, in part:
542.335 Valid restraints of trade or commerce.
(1) Notwithstanding s. 542.18 and subsection (2), enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of business, is not prohibited. In any action concerning enforcement of a restrictive covenant:
(a) A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.
(b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.
The statute sets out some things the legislature considers legitimate interests, such as trade secrets, substantial relationships with customers and client goodwill. But preventing competition is not a legitimate interest to protect.

If your employer doesn't have a truly legitimate interest to protect, then they are violating antitrust laws by enforcing or trying to enforce a non-competition agreement. Unless you're the holder of the company's secret recipe, you might want to talk to an employment lawyer in your state about defenses you have to your noncompete obligations before you decide you have no choice but to step out of your industry for a year or two.