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, February 17, 2016

Employment Law Blog Carnival (#ELBC) Freaky February Holiday Edition

February isn't just Valentine's Day, despite what the greeting card and flower industries would like you to believe. February ought to be designated National Weird Holiday Month, because it is filled with odd and different holiday celebrations. Since I'm honored to be hosting the Employment Law Blog Carnival this month, featuring the best employment law blogs around in one handy place, I get to share some of these unusual holidays with you.

February 2: Groundhog Day

In honor of the holiday that has large rodents predict the weather while we deny scientific evidence of global warming, Michael D. Haberman at Omega HR Solutions gives us If Lily Ledbetter sees her shadow does that mean more government regulation?

February 8: Laugh and Get Rich Day

Okay, so you won't get rich on unemployment. But Philip Miles at Lawoffice Space explains in The Unemployment Compensation Retaliation Exception to "At Will" Employment how the law protects you from being fired for claiming unemployment benefits. Which seems like it would be impossible, since you have to be unemployed to get unemployment, right? But read this post for an interesting and rare situation. Then collect your benefits and laugh all the way to the bank.

February 9: Toothache Day

I question why we need to honor toothaches, but there you have it. Eric Meyer's post in The Employer Handbook, The 24/7 world of social media can bite your employees when they least expect it reminds us that employees who aren't careful with their social media posts may get bitten by their posts. So I guess it's social media that will get the toothache? Okay, it's a stretch, but how can I resist a day honoring tooth pain?

February 11: Don't Cry Over Spilled Milk Day

When an employee reports discrimination or something else illegal, the temptation is to retaliate. But maybe employers should remember their mother's caution: don't cry over spilled milk. Once the cat's out of the bag, you can't retaliate, at least not legally. Check out William Goren's Proposed Enforcement Guidance on Retaliation and Related Issues from the EEOC: the ADA Version at the Understanding the Americans With Disabilities Act blog before you even think about retaliating against an employee.

February 12: National Lost Penny Day

This is the day you are supposed to gather up all your pennies and cash them in. Which you may have to do if your employer isn't handling your 401K correctly. Check out Jewell Lim Esposito at Benefits Law Advisor's More Permissible Mid-Year Changes to Safe Harbor Plans and Safe Harbor Notices to find out if your employer's plan is up to snuff. (If you don't understand the photo, ask a nerd.)

February 14: Valentine's Day

We can't forget the most hyped February holiday of them all. For lovers (at least lovers of employees), Robert Fitzpatrick in Fitzpatrick on Employment Law offers The 4th Circuit Loves Plaintiff's Lawyers.

February 16: National Do A Grouch A Favor Day

Independent contractor issues can make most employers grouchy. Before you take your crankiness out on your staff, let me do you a favor and tell you to read William Goren's Does § 504 Apply to Independent Contractors? at the Understanding the Americans With Disabilities Act blog.

February 20: Hoodie Hoo Day 

Dealing with pension issues makes me need a break, for sure. Hoodie Hoo day is described as, I kid you not, "On this winter day, people go out at noon, wave their hands over their heads and chant 'Hoodie-Hoo'." Jewell Lim Esposito at Benefits Law Advisor's post Trying to Sort Through Retirement Plan Operational Issues? February 1: IRS Offers Discounts on Some Fees for Employer’s Voluntary Compliance Submissions may help you sort through some sticky retirement plan issues. But you can always go outside and chant.

February 20: Love Your Pet Day 

In a great example of people who are ruining things for everyone, Mike McClory in Bullard's Employment Law posts Employment Law Prop Bets ~ EEOC, OFCCP, Minimum Wage, and Flying Turkeys, in which he discusses, among other headier issues, an emotional support turkey allowed on a flight, with its own seat.

February 22: Be Humble Day

Employers might want to be a little more humble when dealing with employee religious accommodations. Janette Levey Frisch at the Employerologist can help employers with when they have to (and don't have to) grant religious accommodations in Do You Have to Allow Your Employees Unscheduled Prayer Breaks?

February 25: National Chocolate-Covered Nuts Day

Mike McClory in Bullard's Employment Law talks about whether you have to accommodate nutty religious beliefs in his post Fictional Mailbag: Religious Accommodation And Request For Relief From “Park To The East” Policy

February 26: Tell a Fairy Tale Day

Employers tell all kinds of fairy tales about why they can't or won't pay wages. If you're tired of excuses and are ready to take action (at least in California), check out Andrea Paris's Wage Claim Process In California.

February 27: No Brainer Day 

My post, Grow Up! Florida Legislators Need To Get Over Potty Issues discusses an issue that should be a no-brainer but which is too complex for potty-obsessed legislators: LGBT discrimination.

And now my work is done. So I'll celebrate February 28: National Public Sleeping Day, a little early and take a nap. 

Friday, February 12, 2016

Grow Up! Florida Legislators Need To Get Over Potty Issues

Potty issues are apparently a big political concern here in Florida.

When I first moved to Florida from the liberal Northeast, I became involved in the campaign to pass the Equal Rights Amendment. I thought it was a no-brainer. But while phone banking I encountered numerous people arguing with a straight face that passing the ERA would mean unisex bathrooms. I was astounded. Well, now we have plenty of unisex bathrooms in this country and the world didn't end.

Yet Florida legislators haven't gotten over their potty issues. Last year, a bill that would have made it a crime to use a bathroom marked for the opposite sex passed one committee before dying a well-deserved death in another. The bill was so poorly written that it would have been a crime to change a male baby's diaper in a women's restroom. All for the purpose of harassing the transgendered.

Just when I thought the worst of the potty issues had come and gone, this happened: a bill to make LGBT discrimination illegal in Florida failed because Florida legislators fear they'll pick up gay cooties in the potty. Well, okay, they didn't actually say cooties. But, in the words of one Republican lawmaker, “you could have a lot of weirdos doing weird things in bathrooms.” These legislators claim they fear that men could dress up as women and really be sexual predators out to attack women in bathroom stalls. Alrighty then.

Here's the thing. Sexual predators could do that very thing right now. There's nothing to stop them other than that it's already illegal to sexually assault people, whether in restrooms or elsewhere. And there has not been a single reported instance of any attack by a transgender person against a person of the opposite sex in any restroom in any state where LGBT anti-discrimination laws have passed. Not one. Zero. Zip.

I'm way more concerned for the transgender man who identifies as a woman and the post-op transgender woman who dress as females yet have to use the men's room. Not only are they being forced to put themselves at risk of physical or mental abuse, but isn't that more disturbing to men and women than just letting people use the potty they feel comfortable using?

The argument, in short, is specious. Which brings me back to cooties. Because that's the only explanation I can come up with for this silly argument. Yet we are continuing to allow legalized discrimination against gay workers in Florida all because Florida legislators haven't gotten over their potty issues.

So I say to Florida legislators, grow up! Get over your potty issues and pass a law that most of Florida's major corporations support and that will actually benefit voters in our state.

Friday, February 5, 2016

My Predictions for 2016

OK, so I waited a bit, and a month of 2016 has already passed. Still, I promised that I'd give you my predictions for the year, so here they are:

Political firings: Since it's an election year, we'll hear about people being fired for discussing politics at work, for supporting the wrong candidate, and for being involved in certain campaigns. We'll also hear some threats from CEOs and other corporate types that if their employees vote for certain candidates (read: not Republicans) they'll be fired. Is that illegal? Depends on the state. In some cases, it depends on the city or county. Should be an interesting and litigious campaign season.

LGBT discrimination: Some states and localities will pass laws against LGBT discrimination, but my home state of Florida will fail again.

Obama to the rescue: The President will continue to be active with his pen. He'll try to squeeze in some more pro-employee executive orders before he goes to the big speaking circuit.

Clear choice: The candidates for President will make their positions on working people very clear. You will need to vote very carefully. You could easily lose many workplace rights if you vote wrong.

EEOC steps up: EEOC will step up its activities in one final burst before the new President gets a chance to gut it (or not gut it - see above about voting well).

NLRB steps up: NLRB will also try to help working people as much as it can while it still can. Employers will complain bitterly.

Do-nothing Congress: Congress will do zip to help working people. They're too busy campaigning and fighting among themselves. They will try some anti-employee crap. The President will veto it.

Criminalization: We'll see more employees arrested and prosecuted for things like trade secrets violations, whereas employers who steal wages will walk.

Joint employer: Whether franchises and placement agencies are joint employers with parent companies and the companies employees are placed with will be a hot issue this year. Federal agencies say yes. Some courts will say no. The Supremes won't decide this year, so more litigation will ensue.

Guns at work redux: We have many states with take-your-guns-to-work laws that protect employees from being fired as long as they have guns in lock boxes in their vehicles. Now employees and the NRA are going to push to allow employees with concealed weapons permits to carry into the workplace. Next, if they succeed, they'll push open carry in the workplace. Will employers wake up and rise up against the NRA? Not likely this year because they're supporting the same candidates. Be careful what you wish for, employers.

There will be lots more going on than all this because the elections usually cause some havoc. But here you have my predictions for the year. Vote well, so I can have some good predictions in 2017.