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, November 28, 2014

States With Pro-Employee Laws: No Solicitation Of Employees Through Misrepresentation

I've written before about the possibility of suing an employer for fraud if they misrepresented the job. If you are lured into a job, specifically if you give up another job or move to accept the job, and the employer had no intention of keeping the promises they made, you may have a claim against them for fraud. However, any such claims have to be made under common law in most states. You may or may not succeed, depending on your state law and the facts of your case.

However, one state, California, thought it was so important to protect its citizens from this kind of employer misbehavior that they passed a law making it illegal for employers to solicit employees through misrepresentation.

The California Labor Code provides:

970. No person, or agent or officer thereof, directly or indirectly, shall influence, persuade, or engage any person to change from one place to another in this State or from any place outside to any place within the State, or from any place within the State to any place outside, for the purpose of working in any branch of labor, through or by means of knowingly false representations, whether spoken, written, or advertised in printed form, concerning either: (a) The kind, character, or existence of such work; (b) The length of time such work will last, or the compensation therefor; (c) The sanitary or housing conditions relating to or surrounding the work; (d) The existence or nonexistence of any strike, lockout, or other labor dispute affecting it and pending between the proposed employer and the persons then or last engaged in the performance of the labor for which the employee is sought. 
 971. Any person, or agent or officer thereof, who violates Section 970 is guilty of a misdemeanor punishable by a fine of not less than fifty dollars ($50) nor more than one thousand dollars ($1,000) or imprisonment for not more than six months or both. 
 972. In addition to such criminal penalty, any person, or agent or officer thereof who violates any provision of Section 970 is liable to the party aggrieved, in a civil action, for double damages resulting from such misrepresentations. Such civil action may be brought by an aggrieved person or his assigns or successors in interest, without first establishing any criminal liability.

I haven't found any other state that offers its working taxpayers this kind of legal protection. Why not? Maybe some legislators in other states can explain to me why they think it's okay to make someone leave their job by saying the position is a long-term one, but they're  really only looking to cover for someone out on maternity leave. Or they just want to lure a competitor's top salesperson over to get all their contacts, then dump them. Or they say the job is for a manager's position, but it turns out the job is for a much lower paid clerk's position. I've seen each of these situations play out in real life, so don't tell me it doesn't happen.

Maybe there ought to be a law in your state. Anyone listening in Florida?

Friday, November 21, 2014

Why You Probably Aren't Getting A $186 Million Check If You Sue Your Former Employer

If you're contemplating bringing a discrimination case against your former employer, you've probably been scouring the Internet for information. You also probably found the recent case where an employee who was the victim of pregnancy discrimination won a $186 million verdict against her employer. You may be seeing dollar signs. Surely your case is worth at least that much.

Or not.

Let's do a reality check. Here are just some of the many reasons why you probably aren't going to end up with a $186 million check from your former employer if you sue:

  • Your bosses didn't conspire to fire all the women: While the case had a single plaintiff, the evidence included testimony of a conspiracy to fire all the women. An interesting quote from the story about the case: "'Specifically, it was said to this district manager, women weren't worth a (expletive) to AutoZone. He was offered a promotion if he fired all the women at his stores,' said attorney Lawrence Bohm."
  • Your company probably didn't celebrate not having to promote women anymore: Another interesting part of this story is that the company had been under a settlement agreement that had just expired. "During the trial, her lawyers called a former district manager – an ordained minister – who described a meeting with high-level executives rejoicing over the expiration of a previous settlement agreement requiring AutoZone to promote women and track it."
  • There's no way this employee is getting a $186 million check: Sure, the verdict is nice. But the judge can reduce the judgment, and likely will. Then there are appeals where all or part of the verdict can get reversed. Even if all goes well, the company could go bankrupt or be uncollectable. If she wants to avoid years of appeals, she might settle. And let's not forget what is likely a 40% or so attorney fee, costs, and taxes.
  • You probably don't want to be in court for 8 years: She was demoted in 2006 and then sued. She was fired in 2008. I don't know about you, but if she was unemployed or underemployed for 8 years, that's an extreme hardship. Do you have the will and the patience to go back and forth to depositions, hearings and a trial for 8 years? What about 2 - 3 years of appeals, or more? Do you have the ability to pay the costs of court reporters, mediators, and other costs for 8 years of legal proceedings? Most people would say no to all these questions. 
  • Your facts are different: Every case is different. The facts of your case are different from everyone else's facts. Your witnesses and evidence are different. You can't compare yourself to the sky-high verdict cases that get all the big publicity. Most discrimination plaintiffs simply don't get that kind of money. 
  • You could lose: How risk-averse are you? Because nobody can guarantee what a judge or jury will do. You could get zero, or even end up paying the other side's fees and/or costs.
  • It was California: Unless you live in California, you won't get a California jury. California is unique in the level of workplace protections it provides. Jurors there are used to having rights. In most states, you'll have jurors who are resigned to having few workplace rights.

Going through a lawsuit is long, drawn-out and expensive. If you're thinking about suing, you need to prepare yourself realistically for what to expect, how long it will take, and that you could end up with nothing. I know it's fun to dream about lotto-sized verdicts, but talk to an employee-side employment lawyer in your state about your case to get a real assessment of your chances.

Friday, November 14, 2014

States With Pro-Employee Laws: Consideration For Noncompete Can't Be Continued Employment

Florida, like some other states, allow unscrupulous employers to present noncompete agreements to existing employees and say, "Sign or be fired." What does the employee get for agreeing not to work for a competitor for a year or two? Continued employment. That's it.

The effects of this can be pretty devastating. Say you left your job for a better opportunity. You start the new job and then, whammo! You have to agree not to work in your industry for 2 years, all your contacts belong to the new employer, and they can fire you a week after you sign. Fair? Heck no. Legal? Yes, in most states.

However, there are some states that just say no to allowing continued employment to be the sole consideration for a noncompete agreement. Last week I talked about some states that even require advance notice, prior to employment, of the noncompete. This week I'll talk about those states that don't allow employers to demand a signature without some real consideration.

Hawaii, Kentucky, Minnesota, Montana, New Hampshire, North Carolina, Oregon, Pennsylvania, South Carolina, Texas, Virginia, Washington, West Virginia, Wisconsin, Wyoming say that continued employment alone is not sufficient consideration for a noncompete or nonsolicitation agreement. In those states, employers must offer something extra, like specialized training, a promotion, a raise, a change to non-at-will status or other consideration for the noncompete or nonsolicitation agreement.

In Illinois, employees must be employed at least two years for continued employment to be valid consideration for a noncompete agreement.

There's a pending case in Wisconsin that will decide the issue. In Alaska the issue is still undecided.

As you can see, state law varies wildly (and it changes constantly). Talk to a lawyer who handles employee-side employment law in your state to find out whether or not your noncompete agreement is enforceable.

If your state is one of those that allows employers to walk in one day and demand a signature upon pain of firing, maybe it's time to talk to your state legislators about why they aren't protecting employees in your state.

Friday, November 7, 2014

States With Pro-Employee Laws: Advance Notice Of Noncompete Agreement

In most states, like my home state of Florida, employers can present employees with a noncompete agreement and demand it be signed on the spot. In states like Florida where continued employment is allowed as valid consideration for a noncompete agreement, there can be an obnoxious situation where an employee quits a job, and then, only after starting work, is handed an agreement and told to sign or be fired. The agreement might say they can't work in their industry for a year or two after they leave. At that point, the employee has little choice. They sign and are then fired a few months later and the burden is on the  taxpayers to pay out unemployment benefits and other government assistance because the employee can't get a job or even apply for one in their industry.

Fair? No. Legal? Yes, in most states.

There are some states that protect employees by requiring advance notice of a noncompete agreement. You'd think voters would rise up and demand such protection, but after this week's election results I guess I shouldn't be too surprised.

Here are some state laws that give protection to their citizens by requiring reasonable advance notice of a noncompete agreement:

Oregon: Oregon's statute § 653.295 says:

(1)A noncompetition agreement entered into between an employer and employee is voidable and may not be enforced by a court of this state unless:
(a)(A) The employer informs the employee in a written employment offer received by the employee at least two weeks before the first day of the employees employment that a noncompetition agreement is required as a condition of employment; or
(B)The noncompetition agreement is entered into upon a subsequent bona fide advancement of the employee by the employer.
 New Hampshire: New Hampshire's statute RSA 275:70 used to say: 
Prior to or concurrent with making an offer of change in job classification or an offer of employment, every employer shall provide a copy of any non-compete or non-piracy agreement that is part of the employment agreement to the employee or potential employee. Any contract that is not in compliance with this section shall be void and unenforceable.
          However, this year New Hampshire's legislature modified the law to say:
Any employer who requires an employee who has not previously been employed by the employer to execute a noncompete agreement as a condition of employment shall provide a copy of such agreement to the potential employee prior to the employee's acceptance of an offer of employment. A noncompete agreement that has not been disclosed to an employee as required by this section shall not be enforceable against the employee, but all other provisions of any employment, confidentiality, nondisclosure, trade secret, intellectual property assignment, or any other type of employment agreement or provision shall remain in full force and effect.

Connecticut's legislature passed a law that would require advance written notice that a noncompete would be required, but it was vetoed. Massachusetts tried to pass a law limiting noncompetes that would include an advance notice provision, but that effort failed. With a new governor of that state coming in soon, it's doubtful any limits will be passed anytime soon.

What's so unreasonable about giving advance notice that an employee is going to have to sign a noncompete agreement if they accept a job? Why don't other states pass laws preventing the "gotcha" that many employees face if they want to keep their jobs? Well, nothing will happen unless you stand up and fight for your rights. Unless voters demand change, most states will continue to allow this kind of employee abuse.