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, October 30, 2013

7 Ways To Protect Yourself If Your Boss Is a Bully

Last week, I answered a question from a "used and abused" reader who was facing a workplace bully. I talked about five ways that your workplace bully might be breaking the law. Today, I talk about some things you can do, starting today, to protect yourself if your boss is a bully.

Read my article in AOL Jobs for  seven things you can do, starting today, to protect yourself if your boss is a bully.

Friday, October 25, 2013

Don't Forget About Religious Discrimination When Throwing Your Office Halloween Party

Personally, I love Halloween. Adore it. I have zombies in my courtyard to scare the kiddies, and a graveyard in front of the house with various and sundry body parts poking out. Yes, Halloween is great fun for those who celebrate it. However, there are some religions that ban celebrating Halloween altogether, and some people who have sincerely held beliefs against it.

Halloween is now a pretty secular holiday, but its origins are in the Catholic religion. The Catholic holiday, All Hallow's Eve, is the night before All Saint's Day. I'm not an expert, but I believe the idea was that souls were liberated from Purgatory on that day, so celebrants would pray for the souls of the dead and hold a vigil during the night. The tradition of going door to door came from the UK, when beggars would ask for a "soul cake" in exchange for offering a prayer for the soul of the dead of the household. Earlier Pagans also had a fall holiday featuring bonfires and feasts, called Samhain, that probably influenced the Catholic celebrations, particularly in the UK.

Here are just some of the religions that don't celebrate Halloween:
  • Jehovah's Witnesses: They don't celebrate any holidays or even birthdays.
  • Some Christians: Some believe the holiday is associated with Satanism or Paganism, so are against celebrating it.
  • Orthodox Jews: They don't celebrate Halloween due to its origins as a Christian holiday. Other Jews may or may not celebrate.
  • Muslims: Many Muslims don't celebrate Halloween, again due to its origins in other religions.
I'm sure there are others. In researching this article, I came upon this telling comment about people who can't/won't celebrate Halloween: "I hate debbie downers who don't celebrate holidays, seriously they don't have to stand for anything, they're just fun." When you're dealing with Halloween at work, many celebrants treat those who have religious objections as "debbie downers," party poopers who just don't want to have fun. Even worse, I've seen situations where employees were ordered to decorate desks and come in costumes because the workplace had contests for best decorated departments. When they refused, they were criticized and threatened as not being "team players."

So, I wanted to issue this reminder to all workplaces celebrating Halloween: don't force anyone to celebrate, decorate, or dress for Halloween. Don't harass them if they don't want to participate. If someone has a sincerely-held belief, then it's likely protected by Title VII's prohibition against religious discrimination. It doesn't matter if you agree with them, think they're mistaken, or even think their beliefs are stupid. What matters is respect for the beliefs of the person holding them.

HR folks might want to give themselves a refresher on religious discrimination and harassment before the company's Halloween celebration, so they can be ready when things go awry.

Wednesday, October 23, 2013

5 Ways Your Workplace Bully May Be Breaking The Law

I got this question from a reader at AOL Jobs:
Hi Donna,
What action would you suggest staff take when the Executive Director of a tax funded nonprofit organization, which is overseen by a board, is abusive to staff? Staff does not have access to HR; they report to the ED who reports to the board. Some incidents have been "investigated" by one or two board members and the HR of the employer of a board member. Nothing has improved. Incidents have been the ED slapping the hand, kicking, and yelling at an employee to "go do your f****** job," commenting on how an employee is dressed, yelling at staff, "forgetting" they did or said something, not following policies and procedures consistently and speaking harshly as to show their superiority. We are at a loss as to what to do. We are not permitted to speak to any member of the board without the ED's consent. We are a small staff, under 15 employees. Suggestions would be most welcome.
Thank you.
Used and abused
This reader is dealing with a bully, which is all too common these days. A career counselor or health care professional might view things differently, but I give my perspective as an employee-side employment lawyer in my response.

I've written before about how workplace bullying is not illegal in any state. Although 23 states have tried to pass anti-bullying laws, none have succeeded. Eleven states currently have anti-bullying laws pending, but I'm not optimistic. Still, there's hope for the bullied. Bullies frequently cross the line into illegal behavior at work. Read my article at AOL Jobs for some examples of how workplace bullies may be breaking the law.

Friday, October 18, 2013

HR Says They Lost My Resume But I Think It's Age Discrimination

This was a question on my post I Reported Harassment and Now HR Wants to Meet With Me. What Do I Do?
I need some help here. I have worked for a company for 10 years. A position opened up and I applied for it. Soon after, the director said they are looking into it and a few days later a guy i trained who is younger than I am got hired. After that another position became available. I applied for it and was told they are looking into it and almost every day the director came to me and said they are looking into it. Also, HR says they never got my resume. Now mind you, this is the second time he told me HR never got my resume. I never received an email or call for this position. They kept saying.HR dropped the ball on this. I was told twice to apply to the position and.both times HR messed up. There are also 2 other guys in the same race class Ii am that got fired or moved for complaining and one of the guys filed a discrimination case against the director. Now they hired someone for the position I applied for that has no experience and I have to.train him. Is.there something I can do? 
 Roy P.
Roy, it sure sounds like you either have the most incompetent HR department around or someone is deliberately jerking you around.  I'd bet on the latter. If you are more qualified than the person who got the job, and the person hired is younger than you, then you may well have an age discrimination claim. I'd definitely suggest talking to an employment lawyer in your state about it.

Now, let's talk about some practical things you can do the next time you see a promotion you want to apply for. I'd suggest taking some steps to make sure your resume gets where it belongs:
  • Send your resume directly to HR: Don't hand it to your boss, who is probably chucking it in the garbage or sending it to HR via turtle. Instead, find out who is in charge of HR and email, fax or hand deliver it to them. 
  • Get proof: Make sure you send it in a way that provides proof they got it. If you fax, keep a copy of the transmission receipt. If you email, send it so you get a read receipt and a delivery receipt. If you hand-deliver it, write down the name of the person you handed it to, along with the date and time.
  • Send a copy to the boss: If the director is someone who is supposed to be doing the screening, then make sure he gets a copy, again with proof of delivery.
  • Follow up in writing: If you haven't heard anything in a week or so, follow up with a brief email asking them to confirm they received it.
  • Update your resume: It's possible your resume is outdated or doesn't reflect all your skills and training. Make sure it accurately reflects your qualifications.
If you think your boss is the one who is tossing your resume, then you might want to report him to HR in writing. Call it a "Formal Complaint of Age Discrimination" and tell them why you think you are the most qualified, how your boss claimed HR lost the resume and you couldn't be considered, and ask them to investigate.

It does sound like the company has a history of retaliation. If they retaliate against you, it might be time to contact an employment lawyer or EEOC.

Tuesday, October 15, 2013

The Last Group Openly Insulted: 7 Ways to Prove Weight Discrimination

I wrote a piece in AOL Jobs called 7 Ways to Prove Weight Discrimination, which I'll excerpt below. But what I really want to talk about are the comments that showed up within a couple hours of the piece going up:
From jmasiulewicz:
"The only category of the ADA that can be voluntarily acquired. A disability by choice. Disgusting."

From rkeeeballs
"If it looks like a fat slob....it is !"

From mckdarren
"Yeah, let's encourage more lawsuits, Donna, instead of encouraging fat people to get control of their lives and health. You're a disgrace."

These jerks prove my point exactly. Overweight people are one of the last groups that Americans feel free to insult openly. Obesity has officially been declared a disease by the medical community. When will we stop treating the overweight like they are less than human?

Anyhow, rant over. Here is the beginning of the article.
In June, the American Medical Association declared that obesity is officially a disease. I've written in the past about weight discrimination and whether it's covered under the Americans With Disabilities Act. The big question is whether, now that disability has been declared a disease, the overweight will find more legal protection under discrimination laws.

Well, the lawsuits are already flying. One law firm reports that a client has been sued for weight discrimination, using the AMA's declaration in support of the claim that weight discrimination is now covered under the Americans With Disabilities Act. I'm sure there are others being filed around the country. 
So, how do you prove illegal weight discrimination? Here are 7 things you'll need to be able to prove if you want to sue for weight discrimination: 

You can read how at AOL Jobs.

Friday, October 11, 2013

Help! I'm Falsely Accused By My Supervisor. Can EEOC Help?

Hello. I was wrongfully terminated with wild accusations by new management on his first day of working. The assistant manager had said I was getting a verbal warning and that the GM had agreed. The next day on my day off I was let go. It took HR 2 weeks to even answer my calls or emails very rudely. Finally, once they contacted me, they said they were conducting an investigation. This was a month ago. I have yet to hear from them again. I have been leaving all sorts of messages not bombarding but at least one weekly. Please help. Can EEOC do anything? I understand they only seek discrimination cases but I do not know who else to turn to.

Cindy R.

Hi Cindy. I'm so sorry to hear you are being kept in limbo by HR. They probably aren't responding because they don't think the company broke any laws when you were fired. You're right, that EEOC only handles cases involving race, age, sex, national origin, color, genetic information, pregnancy, disability and religious discrimination. They don't handle discrimination based on you being treated unfairly by your boss or falsely accused of something for no reason.

However, before you give up and decide you don't have any claims against your former employer, I'd suggest asking yourself why you think the supervisor singled you out. Are you of a different race, age, sex, national origin or some other legally protected category from your coworkers who weren't singled out? If so, it's possible he was picking on you because of discrimination.

Were you accused of something that other coworkers also did? If so, were they also fired? If not, were they of a different race, sex, national origin, etc. from you? This could also be evidence of discrimination.

Discrimination isn't the only thing to think about in this situation. If you recently made a worker's compensation claim, took Family and Medical Leave, discussed working conditions with coworkers, or objected to something the company is doing that is illegal (examples could be failing to pay overtime, safety violations, anything that is a violation of a law or government regulation), then you might also have been targeted due to a legally protected status. There are all kinds of legally-protected statuses that might apply to your situation (bankruptcy, garnishment, association with a protected person, to name a few).

Other legal protections you might have, depending on your state, could be jury duty, being a witness, domestic violence victim, having a gun in your car, legal marijuana use, marital status, bad credit, and many others.

If your dispute with the manager is purely a personality conflict, then you may be out of luck. But it might be worth talking to an employment lawyer in your state if you think you might fit into a protected category.

Wednesday, October 9, 2013

Should I Tell My Boss About My Mental Illness? Why You Should Not (And Three Times You Should)

A reader at AOL Jobs recently asked:

I have 7 years tenure with my company with great reviews. My last 6 month review I had met expectations in every area. I am going through a traumatic personal situation. A new manager was hired in October, and she's the one who gave my last review. In January, I disclosed to her I had PTSD. After that she met with me a month later accused me of not working. Took me to regional manager. They said I was making excuses and were disappointed. She recently told me "maybe you can't do this job anymore". She then lied on coaching logs saying I could not do my work. I went out on leave for PTSD. The last day she had me meet her to give me my year review, which stated I was below expectations in every area. When I came back from leave I was put on a performance improvement plan. She continues to lie about my performance. Is there any way to prove discrimination? They put me on an improvement plan for not meeting certain goals, but my counterparts are having the same problems meeting goals. Other counterparts are having even worse issues and are not put on a performance improvement plan. Please advise.

Unfortunately, the stigma associated with any mental illness means most people are afraid to tell their coworkers or boss. When they do, it's all too common to be subjected to sudden criticisms that you never faced before. In this situation, the fact that you had all good reviews before you disclosed your mental illness and were only written up after you disclosed it could be strong evidence of disability discrimination. If you can prove that your performance didn't change, or that your coworkers are failing to meet the same goals as you and aren't being written up, then you should talk to an employment lawyer in your state or EEOC about bringing a disability discrimination claim against your employer.

 In honor of Mental Illness Awareness Week, my latest piece in AOL Jobs covers why you shouldn't disclose a mental illness or disorder to your employer, along with three times you should disclose it. Read more here.

Monday, October 7, 2013

Shutdown Doesn't Stop Employment Law Filing Deadlines

Thanks to the government shutdown, EEOC's website is down. NLRB's website is also down. You might assume the fact the government is shut down means your deadline for filing claims against your employer is extended. You'd be wrong (maybe). If you have a deadline coming up soon for filing a charge of discrimination with EEOC or a charge against employer with NLRB, you may still have to (somehow) get your filing done in time.

My latest piece in AOL Jobs tells you what to do if you have a pressing deadline to file with EEOC or NLRB.

Friday, October 4, 2013

Your Employer Wants To Erase Your Personal Cell Phone And Computer

The concept of BYOD is all the rage in management-side circles right now. BYOD stands for Bring Your Own Device. Basically, the idea is that companies let employees do work for them on their own cell phones, laptops, tablets and other devices. Lots of dark-side, er, management-side lawyers are blogging about employer risks in having employees use their personal devices at work, and I don't necessarily disagree with them. Some of my management-side colleagues even offer sensible advice on the issue, and even offer advice on how to reassure employees about their privacy concerns. I'm all for employers getting advice on how to get things right.

Then I saw this advice in a recent blog post:
Address what happens when the employee stops working for your company: As noted above, employers have a duty to safeguard sensitive company data. Therefore, when an employee terminates his or her relationship with the employer, the employer must ensure that all of its data is permanently erased from the employee’s personal devices. Yet, it is often impossible to separate relevant company data from personal employee information when “wiping” a device. Therefore, employers should require that their employees acknowledge and agree that all of the data on their devices will be erased when the employee stops working for the company.
Come again? Let me get this straight. Your boss is too cheap to buy you a laptop and a company cell phone. Instead, he "lets" you use your own device. You need them for work, so don't hesitate to use your own laptop, cell phone and tablet to get the job done.

Of course, you also used the cell phone to take pictures of your son's wedding, your daughter's school play, and your last vacation. You uploaded those photos to your laptop too. You use your laptop to email your friends from high school, to send out party invitations, and to remind your spouse to pick up the dry cleaning. Your music library that took you three straight days to copy from your old CDs is in the cell phone and laptop. Plus, your manuscript for your first novel in progress is stored in the laptop.

Now that you're leaving the company, they want you to let them erase all your photos, personal info, writing, everything just because you were dumb enough to volunteer to use your personal devices so they didn't have to buy you separate company devices? Have they lost their fricking minds?

Even worse, some employers want you to let them install a program that will allow them to remotely wipe your devices and track your usage.  The technology does exist for companies to remotely wipe only the business data and not your personal data:
Devices get lost or employees leave a company, and suddenly all that corporate information on a smartphone becomes a security threat. In the past, a company could use “remote wipe” technology to delete all data, but with a personal device, this method also trashed family photos, personal contacts, apps, music and anything else that’s stored. Fortunately, remote deletion capability is much more sophisticated these days, and a company can remove just enterprise-related data from a device and leave all the other content intact.
If employees ever do rise up against their corporate masters, it's this kind of overbearing nonsense that will have caused it.

What's an employee to do?

Say no: If your company wants you to use your device for company purposes, say no. Keep your business and personal stuff separate. If they demand you use it, then get something in writing assuring you that they will not demand you erase your device when you leave. If they want to install a remote wiping program, get something in writing stating that none of your personal data will be erased, and that the company will be liable for damages if they erase your personal data.

Say hell no: If they spring this demand on you when you leave, tell them to pound sand. There are less intrusive ways to assure you've erased business data. For instance, the company could hire a computer tech to delete only the company data while you are present to assure that nothing personal is being copied or erased.

Prosecute: If your employer accesses your personal data without your permission, press criminal charges. It's a violation of the Computer Fraud and Abuse Act and the Stored Communications Act to access your personal data without your permission. They'd prosecute you if you accessed their info. Turnabout is fair.

In general, it's best to use the company devices only for work. Use your personal devices for personal stuff. Don't trust your employer to be reasonable when you leave. Big Employer has lost it's fricking mind.

Tuesday, October 1, 2013

10 New (And Legal) Ways Your Employer Is Spying On You

Just when I think I've heard every extreme story about employer spying, I hear a new one that curls my hair. For instance, a company recently turned in a former employee to the local police for making "suspicious" Google searches on the company computer. One employer installed a tracking device in the car of an employee they thought might be moonlighting with a second job. The National Workrights Institute says that two out of three U.S. employers are using some sort of electronic monitoring of employees. Why? Because it works. One study found that monitoring decreased theft by 22% and increased revenues by 7%. Employers don't seem to care that monitoring also causes increased employee stress and dissatisfaction with their jobs.

Think you have the right to privacy at work? Think again. My article at AOL Jobs discusses10 perfectly legal and new ways your employer may be spying on you.