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, March 21, 2014

Does Zero Tolerance For Bullying In Schools Impact the Workplace?

We have an entire generation emerging from schools that had zero tolerance for bullying, and I think we're already seeing the effects. I have some hypotheses on how zero tolerance in schools is changing the American workplace. Here are some of my thoughts. Do you agree with me?

Cocky nerd: With no bullies to suppress nerds, we're seeing the advent of the cocky nerd. Nerds used to be shy and hardly emerge into the light, but now they can be the most popular kids at school. I see a lot of cocky nerds emerging in music, and I think they're showing up everywhere. This is probably a good thing. If smart kids thrive, then everyone benefits when they come up with the cure for cancer, the personal helicopter I've always dreamed of, or a way to colonize Mars.

Lazy smart people: I was talking to my office manager about the disconnect between the younger generation and mine in the workplace. One of the big complaints I hear pretty universally is that the best and brightest grads can be downright lazy. They want to put in their hours, not work too hard, and go home at 5. My theory on this is that bullies in school made my generation's smart kids feel like they had something to prove. They'd become billionaires or cure heart disease and show everyone at the next reunion. Bwahahaha! Fast forward. This generation of smart kids were the cream of the crop in their schools and they were treated like gold. They won student elections, ran the clubs, and even became cheerleaders and captained the football team. They have nothing to prove. They're kinder and gentler, sure, but where's the motivation, the willingness to work late and put in that extra mile? Do bullies serve a purpose in society after all? What other explanation is there for some of the workplace behavior I see reported by frustrated HR people and supervisors? Where's the joy in working hard to accomplish a task exceptionally well?

Culture shock: With bullying alive and well in the workplace, we have a generation that is utterly unprepared to deal with workplace bullies. They think they can tell HR and everything will be taken care of, like dropping the anonymous bullying complaint in the middle school office. Ha! What a rude surprise they're getting. When this generation grabs some power in the workplace and the legislatures, bullying will disappear from the workplace too.

I think the trick here will to be for my generation and Gen X to figure out how to motivate the millennials (without bullying, obviously). I'm not sure what the answer is. These are obviously gross generalizations and purely untested hypotheses, but I think we'll have some unexpected effects when the zero tolerance generation takes over.

Bullies need to be eliminated in workplaces as well as schools. I think it's overall an improvement that this generation is a bully-free zone. Will they figure out how to end wars? Will they shun bullies instead of rewarding them? Or will they bask in the glory days when they were kings and queens of the school and wonder why they are getting poor performance reviews from the mean old boss?

So, do you think I may be right? Any other theories on how anti-bullying laws for schools will impact the workplace? I'd love to hear what you think.

Friday, March 14, 2014

Is My Noncompete Contract Superseded? Which Contract Applies?

This reader question was left on my post Non-Compete Agreements - Top 5 Ways To Get Out of Yours:
Hi Donna, I am in the State of PA and had signed two year non competes to get options grants. I left the company under a voluntary separation agreement and part of it was a 1 year non-compete Agreement. Question is does the latter 1 year non compete supersede the 2 year Agreement. Also the Agreements are broad and cover the entire globe - what if I have not worked in the potion of the globe where I may work for the last two years? 
 The first thing I do when I look at a severance agreement for an employee who signed a noncompete is the clause at the end that probably starts with something like, "This is the entire agreement between the parties . . ." The reason I do that is because whether older agreements are still in effect depends on what this clause says.

If it says that it's the entire agreement between the parties except for the noncompete agreement, then the noncompete in the older agreement probably still applies.

If it says it's the entire agreement between the parties and can't be modified except by a writing signed by both parties, with no other modifier, then the old agreement vanishes. I've seen entire noncompete agreements vanish this way. In your case, you have new obligations that supersede the old ones. But in some cases I've actually told the employee to sign the agreement speedy quick before the employer realized that they just lost their noncompete. Can you say malpractice for the lawyer who drafted that one?

If it says that it's the entire agreement between the parties related to the subject matter of the agreement, then in your case the old one goes away. However, if it's a severance agreement without the noncompete language then the question will be what a court thinks the subject matter of the agreement is. I'd argue that the subject matter of the agreement was the obligations of the employer and employee post-termination and that it's gone. Would a judge agree with me? I don't have a crystal ball.

Of course, you're in Pennsylvania and I'm in Florida, so Pennsylvania lawyers might look at this completely differently. I'd love to hear from some of you in the comments. I'd suggest talking to an employment lawyer in your state before you sign.

Monday, March 10, 2014

What Can I Do About Sexual Harassment At A Small Company?

An AOL Jobs reader asked me:
I work for a small family-owned business.
One of the married employers is having an affair with another owner. There are pictures going around of him standing in his doorway (which is directly across the hall from her office) masturbating and then going into her office, where she continued the act for him. This all took place within thirty feet of his wife's office, which could have been seen by anyone walking out of their office into the hallway.

The company was recently sued for sexual harassment by another employee for sexual acts from this same man, which was settled out of court in the ex-employee's favor.

The daily strain of coming to the office is getting hard to handle. I can't afford to quit, but health-wise I don't know if I can continue. I have had a headache for four solid months due to the strain of this situation. I am three years away from retirement, which makes it difficult to quit, and I also carry the health insurance for my husband and myself.

Do you have any advice for me?
Yikes! First and most important advice: get the heck out of there if you can. For the rest of my advice, read my column at AOL Jobs.

Friday, March 7, 2014

Is Sexual Harassment Against Contract Employees Legal?

I received this question on my post I Reported Harassment and Now HR Wants to Meet With Me. What Do I Do?
Thank you for this article, it is very informative. I was wondering what the difference is when I'm a contract employee for a company. I work minimal hours weekly at a private company. I experienced verbal sexual harassment by a coworker. I reported it to the director and was fired via email a few days later. Then a few hours later I was re-hired. They realized I could sue them apparently. They are now limiting my freedom to move around the company without someone with me. They are not firing the offender. I don't know if I have any claims against them as a contract worker (1099 misc.) but am infuriated by how unprofessionally I was treated. I asked for a copy of their sexual harassment policy and was told I am not entitled to it since just an outside vendor. I currently am back working my shifts, although they clearly do not want me there and only un-fired me to prevent a lawsuit.
In general, independent contractors are not covered by anti-discrimination laws. However, most people classified as contractors are, IMO, misclassified and are really employees. I've written about this in detail in my article 11 Things To Know Before You Sign An Independent Contractor Agreement. In general, if your employer controls the time, place and manner of your work, you're an employee. If they can discipline, tell you how to do your work, have to approve vacation time, and you can't hire an assistant if you want, you're an employee.

There's a handy-dandy form the IRS has called the SS-8 that you can fill out and the IRS will do the work for you. If you think you're really an employee, fill it out, send it in and the IRS will figure out if you're an employee or not. If you are an employee, the employer will owe back taxes and you'll be covered by employment laws.

You can also talk to an employment lawyer in your state. If you file with EEOC, you need to be prepared for a fight on the issue of whether you're an employee or not, so either do the SS-8 form or make sure you have your legal arguments and proof ready for EEOC.

If you're a contract employee and not an independent contractor, then you're covered. However, it's your actual employer, not the company you're providing services for, who is primarily liable. If you haven't reported it to your actual employer, then you should. If the company you're providing services for controls your work and you enough, they may be a joint employer that would also be liable for the sexual harassment.

While the company doesn't have to fire the offender, if he/she does it again they could be liable since they are now on notice of his inclination to sexually harass.

This certainly sounds like a retaliation situation, so if you are misclassified then you should definitely file with EEOC and/or look at your state's whistleblower laws.

Monday, March 3, 2014

Ask Donna: Answers to AOL Jobs Reader Questions On Wages and Overtime

AOL Jobs readers have LOTS of questions on wages and overtime. I answered a couple questions in my column.

One reader asked:
I have a question pertaining to time. At my current employer, we are technically salaried but we clock in and out for time. Although our boss states it's to be able to calculate PTO, he takes minute for minute once we clock out if under 40 hours. If we are over 40 hours, we get PTO and not over-time. The PTO is minute for minute. Also, if we work through lunch, he will take the hour away stating he "has to". so basically our time card won't be a true reflection of our time worked because he always takes an hour for lunch whether you take it or not. Is this illegal? Should i contact the DOL?

Another reader asked:
I am an LPN and I work for a ministry in Tennessee. They have demanded that we clock out at our designated time even tho we are not finished with our work. They want us to finish our work "off the clock". I would like to know if this is legal, and what can be done about it.

For my answers, read my article at AOL Jobs.