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, December 8, 2017

Aftermath of #MeToo? I Predict Ugly Backlash

In the wake of Al Franken's resignation over eight women's allegations of forced open-mouthed kissing, butt grabbing and boob groping, there has been much angst. Many of my fellow liberal Democrats are beginning to understand what many HR folks have had to go through when the top salesperson, popular CEO or much-loved manager is accused of sexual harassment. The overwhelming temptation is to deny, attack the accuser, circle the wagons and protect the harasser.

I have to admit, that was my first instinct as the initial accusations came up against Sen. Franken. At first, I thought this must be someone paid off by right-wing interests to discredit a strong liberal voice. But then another came forward. And another. One is a former Democratic aide. No, he's not a rapist like some of the harassers we've heard about lately. He didn't drop his pants. But a U.S. Senator forcing women to kiss him while he shoves his tongue down their throats and grabbing butts during photo ops while in office is bad enough.

I've been saying it for 31 years and will keep saying it: if you don't stop a sexual harasser, their behavior accelerates and spreads. If Democrats did a wink-wink at Franken's accusations and did nothing to punish him, he would assume he could get away with such behavior and continue, plus others would assume they could do the same. Sure, Franken is the much-beloved manager, the top salesperson, the popular CEO. There was talk of running him for President.

But failure to act would perpetuate the culture of sexual harassment that exists in this country. That's how we got here in the first place.

Democrats and liberals are mad. These are the folks who would normally be clamoring for tougher sexual harassment laws in the wake of #MeToo. I predict that the loss of Franken and Conyers, plus some major Democratic fundraisers, will mean that little is proposed to protect sexual harassment victims. And I wouldn't expect any such activity from Republicans in any instance, since the Republican leadership seems only to care about women if they are a fetus or carrying a fetus.

It's Already Getting Ugly Out There

I've heard ugly things about the victims and the women who demanded Franken resign already:

  • "Stupid bit##es. They'll regret this." Of course we will. We'll suffer the loss, the same as the company suffers when the top salesperson or the CEO is let go. But we should be mad at Franken for failing to stop his boorish comedy routine when he became a Senator, not the accusers, and not the women in Congress who demanded he step down. Do you honestly think the women in the Senate didn't think about losing the possibility of taking back the Senate before they acted? They're on the front lines. Of course they did. But they also had to be thinking that Franken had lost any moral authority on women's issues or other issues of character if he stayed.
  • "It's a matter of degree. What he did wasn't as bad as Weinstein." I've heard this about Franken and about much-loved Garrison Keillor. Keillor claims he was fired because he only accidentally touched a woman's bare back and I call bull****. For us to believe that, we have to assume that the head of Minnesota Public Radio is a moron willing to sacrifice their biggest moneymaker over nonsense. I don't believe that for a second. I guarantee that Keillor has a rock-solid contract saying he can only be fired for cause, so if he really believes what he's saying I guess we'll hear about it in court. But I suspect we won't because then the real allegations will come out publicly. As for Franken, no, he isn't as bad as Weinstein. So maybe this isn't fatal to his career. Maybe if he got some counseling and sexual harassment training he could apologize to the women and voters and say he will do better. Maybe they will give him a second chance. I might if I were them. But I wouldn't keep him as a salesperson and I don't think he should go consequence-free as a Senator.
  • "There's no proof. It's just her word." Yep. Welcome to my world. I face this every time I bring a sexual harassment claim. Most harassers aren't stupid enough to leave witnesses or evidence. But here's the thing. The women who come to me are usually terrified. They're crying in my office. They suspect that, if they report the harassment, they'll face shunning, mockery, retaliation, loss of their career. And they aren't wrong. In one case, I'm friends with a very liberal man who heard about an accusation that caused a man in his industry to resign. His response? "I would never take a meeting with her. I wouldn't trust her." This was a case where the company's lawyers investigated her allegations. Do you honestly think the company's lawyers didn't do everything they could to discredit her and save their guy? If the company's lawyers are against him, something really serious must have happened. Yet this woman's career is probably damaged irreparably. Men will Mike Pence her and refuse to meet with her alone. They will assume she's a liar, although she did not sue or seek money based on her accusation.
  • "These women are liars. They're just looking for publicity." Oh, sure. Everyone wants publicity that will get them threatened, shunned, avoided and mocked. Because they all say how well things went for Anita Hill and Monica Lewinsky. Most of these women came forward despite being terrified and are not seeking any money. If they are still within the statute of limitations, they should seek money because that's the only thing corporations understand.

I Predict Backlash

I predict backlash. These are just some of the more printable comments from liberals that I've seen. If liberals have turned on the #MeToo movement, backlash is inevitable.

Here are some of the backlash consequences I predict:

  • Judges and juries: They will punish sexual harassment victims even worse than usual. The victims will be greeted with more suspicion and skepticism and even worse case law than what exists today. The raised consciousness that everyone seems to think will happen, the presumption of truthfulness of the accuser, will fail to come to fruition. 
  • The victims: Many of the women who openly made accusations will be shunned and avoided. Their careers will take a step backward and maybe halt altogether. While we've had a brief period where women got brave and openly made accusations, that will roll way back as the consequences become apparent.
  • The law: No improvements will be made. We won't get a separate law on sexual harassment that makes the standards and penalties clear. We'll be stuck with cases interpreting Title VII and state laws that are difficult to navigate. There will be a push to roll back sexual harassment protections in the next few years, and the public may buy it. Little or nothing will be done to protect victims against retaliation.
  • The harassers: Some who were outed will manage to redeem themselves and come back in their industries. Some will continue and get worse because nobody dared to report them. The culture of sexual harassment will continue in this country for at least another decade.

I hope I'm wrong. I hope that we can all come together and work on some sensible improvements to the existing sexual harassment laws. I hope we will be in a new era of believing the victims who come forward to accuse sexual harassers.  I hope we crush the culture of sexual harassment and move forward toward true equality for women.

But I'm not wrong.

Friday, November 17, 2017

HR And Management-Side Lawyers Need To Change If We Are To End Sexual Harassment Culture

Someone recently asked me what could be done to change what is clearly a culture of sexual harassment in this country. Not just how do we enforce the law, but what do we have to do above and beyond the law to end the harassment epidemic. It's a tough question, but I do have some thoughts.

The first and largest problem is that the victims are afraid to come forward. And there's good reason for that. In my experience, many, if not most, sexual harassment victims who report it suffer some form of retaliation. They are disbelieved, mocked, shunned, ostracized, transferred, demoted, fired or shunted off to never never land where they have no advancement opportunities.

Harassers, on the other hand, are defended and protected. If someone is moved, it is usually the victim.

I blame HR for this, but it's not the fault of hardworking and well-meaning HR people so much as a combination of the "complainer-as-enemy" mentality perpetuated by a large portion of the management-side bar and some really bad cases interpreting the law on sexual harassment. HR folks represent the company, after all. They are trained that their job is to protect the company at all costs. But if we look at the cost in morale, punitive damages, and loss of quality staff that sexual harassers cost employers, then rooting out sexual harassment should be considered a key part of protecting the company.

The result of "complainer-as-enemy" corporate culture is that, when a complaint is made, the tendency is to do everything possible to discredit and disbelieve the complainer and circle the wagons around the harasser. That needs to change.

Here is what I would do if I had a magic wand to change the way the management-side bar and HR handle sexual harassment complaints:

Start from the premise that the complainer is telling the truth. As we've learned from the many women who came forward years later to tell stories, complaining is terrifying. Most sexual harassment victims had to get up a lot of courage to even come to me, much less go to HR. Yet the Supreme Court says they have to complain if they are to win a sexual harassment case. By the time they get to the point of reporting it, you should assume they are telling the truth. Treat them with respect. It took a lot of courage for them to come to you.

Contact former employees. Now that you are assuming the victim is telling the truth, your investigation should be different. Act like the reporter who investigated the Kevin Spacey sexual harassment allegations and see if you can find others who were harassed. Contact former employees who worked with the alleged harasser and see if they will admit to being victimized. These are the folks most likely to have the courage to admit the truth. Most current employees will lie to save their jobs. Investigations right now start from the premise that she or he is lying and try to prove that. If you flip the investigation and try to prove she or he is telling the truth, you might actually uncover some sexual harassment.

Create a truly safe space for reporting. It's almost impossible to keep the identy of the victim secret. Coworkers' natural tendency is to shun and avoid the victim because they don't want to be associated with someone who is radioactive. You have to shut this down. Do not allow coworkers to treat the victim differently. Retaliation should be dealt with on a zero tolerance basis. Even if you do disbelieve the person who complained, you must protect them. Otherwise, you create a culture of fear and nobody else will report sexual harassment.

Punish the harasser, not the victim. I don't care if the harasser is your superstar sales person, the CEO or the founder of the company. The victim should never be the one transferred. If the harasser gets away with it, they will accelerate their behavior. Once you are on notice that they have a propensity to sexually harass, the company will be liable for punitive damages when he does it again. And a culture of sexual harassment spreads and turns the company into a frat house a la Fox. If you allow the harasser to continue harassing, you deserve to get hit with a megabucks punitive damages judgment.

Stop crushing the victim. In the complainer-as-enemy culture that exists right now on the mangement side, victims are put through hell. Management digs up sexual history, performance issues, problems with former employers, every bit of dirt they can to tarnish the victim. When you do that, you create a culture of sexual harassment that wastes valuable productive time at work and brings us to the place we are today. Is it any wonder victims assume that this behavior is expected and they must tolerate it? Why are we surprised when victims don't report it when they see what happens to those that do?

Reward the person who steps up to stop a harasser: Whether it be the victim or a concerned coworker or supervisor, if you investigate and find out that there really is a sexual harasser in the company, you should reward the person who reported it instead of punishing them. This is a brave person who stepped up at the risk of their job. They should promoted and given a bonus, not put on the do-not-promote list or fired.

All of the above, and the fact that it won't happen, is why I predict that once the media attention dies down we'll go back to the way things were before, and sexual harassment will continue to be the norm rather than the exception. Please prove me wrong.

Thursday, November 2, 2017

Insurance Open Enrollment is Now Through Dec. 15. Be Persistent. Spread the Word.

The open enrollment period for the Affordable Care Act/ObamaCare started yesterday and continues through December 15. You may not have heard about it because the Trump Administration cut advertising by 90%. So please tell a friend. Send the URL to this article to anyone you know who needs health insurance.

Here are some things you need to know.

The site will shut down periodically: This is why I said be persistent. During open enrollment, the Trump Administration plans to shut down the website for registration for 12 hours nearly every Sunday. Don't give up. They're trying to discourage you from enrolling. Don't let them win.

Enroll at healthcare.gov: Here's the URL to enroll for insurance or change your plan.

If you lose your job: Once you lose insurance because you lost your job, you don't need to be in the open enrollment period. You'll have a special enrollment period that gives you an opportunity to get coverage other than COBRA if you want it.

Subsidies not cut for everyone: Even though the Trump Administration cut the subsidies available, causing many premiums to skyrocket, subsidies are still available for some, but only during open enrollment. If your income is 100% to 250% of the federal poverty level, you still get subsidies. Those income levels for 2018 are:
  • $12,060 to $30,150 for an individual
  • $24,600 to $61,500 for a family of four
Open enrollment is cut in half: Last year, open enrollment was 3 months. This year, it's only 6 weeks. Don't wait.

It hasn't been repealed: Although surveys show 10% of Americans already think the Affordable Care Act was repealed, it wasn't. Yet. However, 3.5 million more people are uninsured since Trump took over.

Just be aware that President Trump is doing everything he can to keep you from being insured. Fight to keep your healthcare. It's a matter of life and death.

Friday, October 20, 2017

#MeToo: Most Women Have Been Sexually Harassed. Let's Start Believing Them.

You're probably familiar with the "Me Too" campaign on Twitter and Facebook where women are posting #metoo if they have been sexually harassed or sexually assaulted. I'm one of those who posted. Yes, even an employment lawyer who handles sexual harassment cases has been sexually harassed. I'll tell one of my stories in a minute.

People keep asking me why all these women have been so silent for so long. They blame the victims for keeping their mouths shut. While different women have different reasons, I can opine as to some of them. I think the major reason most women don't come forward is that we, as a society, tend not to believe them. Women who complain about sexual harassment at work are frequently demonized, mocked, called liars, and retaliated against. Women who take these cases to court have a tough time getting past a judge to a trial, and then have an even tougher time convincing a jury. In a he said-she said, we tend to believe the "he" over the "she."

Look what happens to the first woman (or even first few women) who reports sexual harassment against any famous person. She is almost universally ridiculed and vilified. To this day, Monica Lewinsky is a punch line and Anita Hill is still a villain to the right wing. Look at the women who first came forward more recently about Bill Cosby, Roger Ailes, Bill O'Reilly, and Harvey Weinstein. Read the comments as they are trashed and humiliated.

We have to do better. We, as a society, know this is happening and do nothing. Women, in particular, need to support those who come forward. Victims are told to be quiet or they will be destroyed.

The laws need to be stronger and less of a maze in order to protect sexual harassment victims. The trouble started with the Faragher and Burlington cases where the Supreme Court said victims had to report sexual harassment to HR or management under the company's sexual harassment policy and give the company a chance to fix the situation. If they didn't, they lost their right to sue.

Then there's the whole "severe or pervasive" standard that frequently makes a mockery of Title VII. For it to legally be sexual harassment, it has to be so severe or so pervasive that it alters the terms and conditions of your employment. Most women I know that a single boob grab is severe and alters tthe terms and conditions of your employment, but the courts disagree. And then some say "severe and pervasive" and impose even more difficult standards.

Don't believe me about how tough the courts are on sexual harassment victims? Here's one of my least favorite cases saying sexual harassers get four free gropes a year in the workplace before the company can be held liable. In Myers v. Central Florida Investments, Inc., 2006 U.S. Dist. Lexis 51504 (M.D. Fla.), here’s what the federal judge said about the case:
Additionally, from an objective standpoint, consideration of the factors noted above does not support severity or pervasiveness in this case. First, the harassing conduct, considered as a whole, cannot be said to have occurred with great frequency. Ms. Myers alleges ten to twenty touchings – mostly of her legs, but sometimes of her butt – over a period of approximately five years – two to four per year; thus, the touchings were infrequent. . . . In sum, considering the totality of the circumstances, from an objective standpoint the harassment did not rise to the requisite level of severity or pervasiveness.
The case was reversed later, not because of the four gropes rule.

Sure, things have gotten better for sexual harassment victims with President Obama's judicial appointees, but that's about to change again with the slew of Trump appointments. We'll have to rely on Congress and state legislatures to change the law if we want to protect sexual harassment victims better, and that won't happen anytime soon.

Because of #metoo, I thought I'd share just one of my own sexual harassment stories. When in college, I took a job that was posted in the college career office. I was an art model. Yes, nude. But it was for an older man (oh, hell, he was probably the age I am now or younger) and I was in his house. His wife was in the house at all times I was there. I thought I would be safe because the college referred me and because of the wife being there. Yet, midway through our sessions, he decided to do a double boob grab from behind as I was getting dressed. I was probably 19 or 20. I didn't know squat about the law, but I knew it was wrong. I also knew he was my ride back to the college so I pushed his hands away and stayed quiet. I was terrified of what might happen if I screamed.

After he dropped me at the college, I reported the incident to the college career office. I asked them to remove his listing. They refused. They saw that it was an art modeling job and then discounted everything I said after that. They clearly didn't believe me or care. They gave me the impression they assumed I asked for it. This was a women's college that was supposed to be all about empowering women. Yet they ignored my plea. They kept his posting at the college, and I assume he continued to be a sexual predator. He actually begged me to come back and let him finish the painting. I refused, of course.

While this wasn't my only sexual harassment story, it was probably my worst because I felt utterly betrayed by my college. I believe they would have a different reaction now if a student reported something similar. At least, I hope they would.

Since Anita Hill, I think some folks woke up and realized that sexual harassment was a real thing. Now, every time there's a big story, some more people wake up.

Who knows? Maybe one day I won't have to handle sexual harassment cases anymore because employers will know the law and take prompt action to protect the victims. Nah.

Friday, October 13, 2017

Is It Time To Quit Your Job? There's No Shame In Ending A Bad Situation

Let's say you hate your job. Maybe you've told colleagues that your employer-provided house is a dump. You've opined that your job was like being in prison. The job is causing you so much stress that you're losing your temper a lot. Colleagues and friends are starting to recommend that you seek help from a mental professional. You're just not good at what you do.

Maybe it's time to call it quits. Not that I'm hinting to anyone in particular.

But seriously, how do you know when it's time to quit? What should you do when you figure out that it's time to go? Here are some things to think about before you hand in that resignation:

  • Will it be more stressful to be unemployed?: This is the first thing I ask clients who desperately want to quit their jobs. Sure, some jobs can be miserable. But is it more miserable than being unemployed for months or even years? Can you afford to live on Florida's measly maximum of $275/week in unemployment benefits? How stressed will you be when you file for bankruptcy, get evicted, lose your car? If the answer is that you'd rather go through all that than stay at the job, it's probably time to quit.
  • Can you afford to be unemployed?: If you have enough savings to last you for months, if you don't need the job, if your spouse or partner can support you, or if you already have another job lined up, maybe it's time to quit.
  • Have you started looking for another job?: If you haven't done your due diligence to find out how long it will take to find something else and how tough the market is, maybe you should start before you quit. Make a fully informed choice.
  • Is the job making you sick?: Some people work in miserable conditions to the point that they become physically or mentally ill. If it has come to the point that your doctor or mental health professional is telling you to get out for your health's sake, it's time to go. No job is worth dying or having a mental breakdown over. However, you might think about taking a FMLA or other leave if available to you so you can take a step back and make the decision in your own time.
  • Are you unsafe at work?: If you are being sexually harassed or harassed due to race, age, religion, etc., report it in writing to HR and give your employer a chance to investigate and fix the situation. However, if you are being physically attacked or threatened with bodily harm and the company won't remove the attacker, then you probably should not go back to an unsafe workplace. I do suggest you report any such incidents to the police and to HR before you let the attacker drive you out of a job.
  • You hate your job: If you hate your job, hate the people, hate the work, it will show. Rather than let your work performance slide and get fired, it's time to start looking elsewhere. Sometimes, the decision to leave will keep you going through a truly crappy job until you are ready to leave on your own terms.
  • You are terrible at your job: Sometimes, the job just isn't a fit. No matter how hard you try, you can't keep up, can't live up to expectations, or just don't have the skills or training necessary. If you've asked for training, done everything you could to get up to speed, then it's time to look elsewhere before you're given the boot. Try not to wait until you're given that PIP, final warning or severance agreement. If you know in your heart you aren't cutting it, then cut your losses.

There are lots of reasons to quit, but the timing is key. Quitting with little or no notice, with no job lined up, that's a pretty serious move. Be sure you have thought it through. If you're unsafe or it's unhealthy, then that's one thing. But otherwise, make your plan, do your job search and go when you're ready.

On the other hand, if you're a billionaire who doesn't need to think about mudane things like how to pay the mortgage, maybe quitting by tweet at 3 AM is the best thing. Hint, hint.

Monday, October 2, 2017

Job Or Self-Employment Lost Because Of Hurricane? You May Qualify For Disaster Unemployment Assistance

Folks who normally don't qualify for unemployment assistance, such as business owners, may qualify for Disaster Unemployment Assistance if they are unable to work due to one of the hurricanes that hit the U.S. Even if you only lost your job for a short time, you should look into this. It's your money, after all. This is part of what your payroll taxes have been paying for.

Here's what the Benefits.gov website says about who qualifies:
In order to qualify for this benefit your employment or self-employment must have been lost or interrupted as a direct result of a major disaster declared by the President of the United States. You must have been determined not otherwise eligible for regular unemployment insurance benefits (under any state or Federal law). 
Payment will be made to an unemployed worker, who as a direct result of a Presidentially declared major disaster: 
  • No longer has a job.
  • Is unable to reach their place of work.
  • Cannot work due to damage to the place of work.
  • Becomes the head of the household and is seeking work because former head of household died as a result of the disaster.
  • Cannot work because of a disaster-incurred injury.
You have to apply in the state/territory where you live. Each state/territory has its own site for applying.

To apply for Disaster Unemployment Assistance in Florida, start here. Here's the announcement about it. You only have until October 16 to apply. Florida's announcement says you qualify if you:
  • Worked or were self-employed or were scheduled to begin work or self-employment;
  • Are not able to work or perform services because of physical damage of destruction to the place of employment as a direct result of the disaster;
  • Can establish that the work or self-employment they can no longer perform was their principal source of income;
  • Do not qualify for regular unemployment benefits from any state;
  • Cannot perform work or self-employment because of an injury as a direct result of the disaster; or
  • Became the breadwinner or major supporter of a household because of the death of the head of household.
 Texas's announcement is here. You have until October 30 to apply. You can apply here.

Georgia's site for applying is here. You have until October 19 to apply. The announcement is here.

The list of disaster assistance available for Puerto Rico is here, and it includes disaster unemployment assistance. I haven't found any announcement yet. Deadline is 30 days from the announcement. Puerto Rico's unemployment compensation websites appear to be down, but a list of them is here.

The list of disaster assistance available for the U.S. Virgin Islands is here and it also includes disaster unemployment assistance. I haven't found the announcement yet. Deadline is 30 days from the announcement. USVI's unemployment compensation website is here.

Tuesday, September 19, 2017

OSHA Protects You From Dangerous Working Conditions Post-Hurricane

I'm getting lots of calls and emails about employers making employees work in conditions they deem unsafe. Here's what OSHA says about workplace safety:

You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.

OSHA also has a flyer about safety during disaster cleanup here. Some basic safety rules:

  • Keep an adequate amount of clean water for drinking.
  • Make sure workers are trained to do any complex or hazardous tasks.
  • Provide the proper equipment such as gloves, respirators, boots, lifting equipment and eye protection.

A host of other specific fact sheets are here. Some particularly useful ones for hurricanes are:

Bottom line for employers is don't be stupid. Don't have employees in business attire climbing ladders and removing debris. Make sure employees are properly dressed. Don't cheap out and try to use your clerical employees to move downed trees or work around downed power lines. The lawsuit you will face when someone is seriously injured or killed will cost you way more than hiring the correct folks for the job.

The worker's page for reporting problems and with more resources is here.

By the way, if your "exempt" employees are doing debris removal or other scut work, they probably aren't exempt from overtime for that work. But that's another issue for another day.

Monday, September 4, 2017

If My Office Is Closed Due To A Hurricane Do I Get Paid?

With Texas recovering from Harvey and Irma bearing down on Florida right now, I thought I'd re-run this popular and necessary column.

Whether you’re entitled to be paid when the office is closed depends on whether you are “exempt” salaried or not. Just being salaried doesn’t necessarily mean you aren’t entitled to overtime. It’s possible to be salaried and still non-exempt from the requirements of the Fair Labor Standards Act. Many employers misclassify employees as exempt to avoid paying overtime. If you work more than forty hours per week, it’s better to be non-exempt. But in the case of weather and emergency closings, it’s probably better to be exempt.

Exempt employees: If you’re exempt and you worked any portion of the work week, you have to be paid your entire salary, whether or not the office is closed for a natural disaster such as hurricane, snow, tornado, or flood. Further, Department of Labor regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” This would include natural disasters, so if you are able to work after a storm then you must be paid even if you didn’t work any portion of the week. If you can’t get there on time or have to leave early due to the flooding but the office is open, they can’t deduct for any partial days you worked.

Vacation time and PTO: Your employer can deduct from your vacation time or PTO for the time taken. However, if you have no accrued vacation or PTO time available, they still can’t deduct from your pay if you’re exempt.

Non-exempt employees: If you are non-exempt, then your employer doesn’t have to pay for the time the office is closed. However, if your company takes deductions and you’re a non-exempt salaried employee it may affect the way overtime is calculated.

Who Is Exempt?: You’re not exempt unless you fall into very specific categories, such as executives, administrative employees, or learned professionals. Plus, your job duties must fall within those categories, not just your title. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This is one of those rare times when it's better to be exempt, so it's the one time you can be glad that President Obama's overtime expansion was gutted.

Pay For Reporting To Work
: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. Florida has no such requirement and neither does Texas, (so maybe it’s a good time to start complaining to your legislators).

Disaster Unemployment Benefits: If you live in certain counties in Texas, you may qualify for disaster unemployment assistance. If your state gets hit, here's where to start searching to see if you can get disaster unemployment assistance.

If you’re hit or have already been hit with a big storm, get in touch with your supervisor or manager as soon as possible to find out whether or not you’re expected to be at work. If you can’t get in touch with anyone, then only go in if it’s safe for you to do so.

Stay safe!

Friday, August 25, 2017

If Your Prospective Employer Has Lots Of Turnover, Think Twice

All the craziness and turnover at the White House has many Americans wondering what anyone joining the Administration is thinking. But I see it all the time. Folks either desperate for a job or getting an offer that's off the charts decide they can handle whatever a difficult employer throws at them.

They're wrong.

First of all, let's look at that off-the-charts offer. It sounds too good to be true, but you have an offer. They promise a contract is forthcoming but it never does. You still leave your job or move across the country for this great opportunity. If the contract didn't show up before you started, it's probably never showing up. You were scammed.

Better yet is the offer to give you a piece of the company. It's verbal only, but you trust them. Still, they never put it in writing. Surprise! Ownership never happens.

At the very least, confirm any offer you get in writing before you accept. Just email them, with a read and a delivery receipt, something like, "Thank you for meeting with me on Thursday. This will confirm my understanding of your offer to me. The salary for the janitorial supervisor position is $10 million per year and I will be conveyed a 50% ownership interest in the company after one year. If this is incorrect, please advise me within 24 hours. I appreciate the opportunity and will advise you of my decision within 48 hours."

If they respond and say yes, that's the offer, then if you accept in writing you have a contract. Offer+acceptance+consideration=contract. If they call you to confirm, then put that in writing too. "This will confirm our conversation today where you confirmed that the salary for the position of janitorial supervisor is $10 million/year with a 50% ownership interest to be conveyed in one year."

Anything important to you, confirm in writing. If you are going to be made General Manager and right now you are a salesperson, put it in writing. If you are going to have relocation expenses reimbursed, put it in writing. If they guarantee that you will have a job for at least a year while you prove yourself, put it in writing.

That won't keep the boss from being a jerk, but at least you have something to prove what was said and take to someone like me.

Now, back to the jerk. It's hard to turn down a job in the White House or the corporate suite. But sometimes that's the best decision.

If you find out (and you should do some due diligence, like checking Glass Door, LinkedIn and other sources to find out about the company and its turnover rates) that there have been 5 people in the position you have applied for in the past two years, run. This is not a good place. Even if they all died of a mysterious illness, maybe you're dealing with a serial killer or toxic mold. Odds are, someone in the company is awful to work with. Maybe the job isn't what was promised. Maybe the boss hurls staplers at people and punches holes in walls.

Or maybe the boss just likes to scream, "You're fired!"

Try to avoid employers with high turnover. Your health and your resume will thank you.

Friday, August 18, 2017

Can You Be Fired For Being A Racist A**hole? Yes. Well, Maybe. Probably.

So, a Twitter campaign has been outing folks who attended the Nazi/white supremacy/alt right rally outside the University of Virginia in which a Nazi murdered a protester and injured many others by plowing into them with a car. Some of those who have been outed were promptly fired. I've been asked whether firing someone for attending a racist rally is legal.

The answer is yes. Well, maybe. Probably. There. Are you happy?

An employer who is aware of an employee's propensity to engage in race or national origin discrimination (or any other kind of discrimination) has a duty to maintain a safe workplace. That means firing or disciplining the worker, or taking other steps to make sure he or she doesn't engage in illegal harassment or discrimination in the workplace. An employer that fails to take action could be liable for punitive damages if the racist employee acts on his/her beliefs at work.

Thus, my initial answer, which is yes, you can be fired for being a racist a**hole. However.

Some states and local governments have laws protecting you from discrimination due to your political affiliation or activities. For instance, California, Colorado, New York, North Dakota and Louisiana say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. Here in Broward County, it's illegal to fire employees based upon political affiliation. If you work for government, there's the good old First Amendment to protect you. Plus, the Civil Service Reform Act of 1978 prohibits political affiliation/activity discrimination against federal employees.

Thus, my second answer. Maybe. This is one of those situations where two laws rub up against each other. I would think a strong argument could be made that attending a rally like last weekend's would give an employer a legitimate reason other than political affiliation to fire or discipline an employee. Once the employee starts spewing racist stuff in public and waving swastikas, that may well cross a line. Will the courts decide that the employer has a legimate business to protect? Maybe. Even with government employees, the government may well be able to prove that the employee's free speech rights were outweighed by the government's right to efficient and orderly operation.

If, however, the employee has always been respectful to coworkers and customers of color and continues to do so after the rally, maybe the employer doesn't have a legitimate reason other than political affiliation to fire the person.

Still, I default to my third answer, probably. Most states have no legal protection for political firings. So most employees have no legal protection if they attend a racist rally. The employer probably has a duty to protect coworkers and customers from a racist. I suspect most courts will say firing someone for attending a racist rally that turned murderous is perfectly legal, maybe even required.

Friday, August 11, 2017

Will You Let Your Employer Microchip You? Just Say No!

And so it begins. A Wisconsin company is implementing a "voluntary" program where employees can be microchipped. They swear that they aren't using GPS technology to follow the employees. However, they say it is a convenience to the employees, allowing them to pay for things and get in and out of the building quickly.

What's the worst that could happen?

While this foray into treating employees like beloved pets sounds benign, it's only the beginning. I guarantee that if this company's employees agree to be microchipped, employers all over the country will demand the right to implant employees with chips that do have GPS and other nasty tracking software.

I can tell you some of the worst that can happen with microchipping employees. Here are just some of the possible nightmare scenarios:

  • Worker's comp: Infections, allergic reactions, cancer (yes, cancer), medical problems galore.
  • Religious discrimination: Some employees will have religious objections to these implants. Will those objections be honored, or will the employees be fired? 
  • Privacy: Employers will know where employees are at all times. Do you really want your employer timing your bathroom breaks, logging every time you get a cup of coffee or take a brief walk to stretch your legs? And if they have GPS, they will know every time you go to a bar, a movie (and can figure out what movie you saw), political rally, union meeting, etc.
  • NLRB: If employers can track which employees go to union meetings, I predict some NLRB complaints.
  • Disability and pregnancy discrimination: It's only a matter of time before microchips are a "wellness" measure tracking your blood pressure, weight, diseases, and pregancy. Once employers are aware of this information, I can guarantee disability and pregnancy discrimination suits will abound. You should not trust your employer with your health information. It's none of their business.

Need I go on? Just say no to employer microchipping, before all employees are treated like dogs.

Friday, July 28, 2017

Hey Florida Medical Marijuana Users - Gov. Scott Says You Can Be Fired

I've previously written about Florida's medical marijuana law saying nothing about protecting employees who are prescribed marijuana from discrimination. That was bad enough.

Now, it's worse.

Gov. Rick Scott recently signed into law a bill that very specifically says you can be fired for using medical marijuana.

The new law says that "medical use" does not include use, "In a qualified patient’s place of employment, except 228 when permitted by his or her employer."

It also provides:
(15) APPLICABILITY.—This section does not limit the ability 1678 of an employer to establish, continue, or enforce a drug-free 1679 workplace program or policy. This section does not require an 1680 employer to accommodate the medical use of marijuana in any 1681 workplace or any employee working while under the influence of 1682 marijuana. This section does not create a cause of action 1683 against an employer for wrongful discharge or discrimination. 1684 Marijuana, as defined in this section, is not reimbursable under 1685 chapter 440.
So if you thought your employer might actually have to accommodate your use of medical marijuana, think again. It will be in your bloodstream and urine for days, so you can't use it only at home and hope for the best.

The Florida legislature and our governor have, yet again, screwed employees over.

Friday, July 21, 2017

Stupid HR Stuff: If You Don't Want Employees To See The Handbook, You're Doing It Wrong

I hear this all the time: "I was required to sign a paper saying I received the handbook. As soon as I signed, the HR folks snatched up the handbook and didn't let me keep a copy." Or, "I was required to sign saying I received the handbook, but I never actually saw it."

What the heck was the point of that? The whole point of having a handbook is to let employees know what their responsibilities are, where to report issues, how to put in for vacations and sick time, all the stuff you actually want them to do and not do.

If you don't want your employees to see your employee handbook, you're doing it wrong.

I think you'll have a hard time proving some key employment law defenses if you don't actually let employees have a copy of the handbook.

Plus, once you have an employee sign a document that you know and they know is a lie, you lose all credibility with them. Everything you do from then on is a joke. A sham. They won't believe you anymore.

To employees who are asked to sign a document saying they received something they never got, I suggest signing with a notation like, “I was allowed to look at it once but was prohibited from getting a copy.” Or maybe, "I am required to sign this but I have never actually seen the handbook." Having to make a notation like that is probably a bad start to new employment, but it's better than signing something you know is not true.

Whether or not employees got a copy of their handbook comes up in almost all employment litigation. Employers who make a mockery of their handbooks look pretty stupid in court. Not only is your credibility lost with your employees, but you could lose credibility with a judge or jury too.

Friday, July 14, 2017

Can I Fire An Employee If Their Ex Threatens The Boss?

I was asked this question by a friend asking on behalf of someone else and thought the answer might be useful here. 
An employee has become involved with multiple abusive men, who then end up calling the office and harassing or verbally abusing other employees. The latest was a call where he threatened to beat up the boss. They want to know if they can fire her.
They’re in Texas, which doesn’t have a law protecting domestic violence victims from firing, but I wonder what the right way would be to handle this if they did.

And can they legally tell her that while they're sympathetic to the situation she’s in, they can’t put other employees and clients at risk, and that they can’t continue to employ her if people from her personal life continue to call her office and threaten people?
Boo to Texas for being behind the times. Many states have laws protecting domestic violence victims. In those states, the answer would be different. A proposed federal law to protect domestic violence victims from discrimination at work went nowhere. Are we surprised? Here is a brief summary of some state and local laws protecting domestic violence victims from employment discrimination: 
  • California law says an employer can't fire an employee for being a domestic violence victim, and it also requires employers to make reasonable accommodations to secure the workplace for the victim's safety. Employers with 25 employees or more must grant victims reasonable leave to deal with court dates and other issues relating to the domestic violence. Colorado provides up to 3 days of leave if the employer has 50 or more employees.
  • Connecticut provides for up to 12 days of leave and bans discrimination against domestic violence victims. 
  • Delaware’s law makes it illegal to discriminate against domestic violence victims and requires employers to make reasonable accommodations such as schedule changes or changes in job duties.
  • Florida law grants domestic violence victims up to 3 days of protected leave. Employers cannot discharge, demote, suspend, retaliate or otherwise discriminate against an employee for exercising their rights to domestic violence leave. To our legislature's credit, this law has been in place since 2007, so we were a whopping 7 years ahead of pro-employee Massachusetts for a change. Miami-Dade County has an ordinance providing for up to 30 days of protected leave. 
  • Hawaii also has a protected leave, the amount of which depends on the size of the employer. Employers can't discriminate against victims and also must provide reasonable accommodations. 
  • Illinois law requires reasonable accommodations, prohibits discrimination and 8 - 12 weeks of protected leave, depending on the size of the employer 
  • Indiana prohibits discrimination for either filing a petition for a protective order or for actions taken by the abuser. It also provides that employer and employee may mutually agree to accommodations. 
  • Kansas law says employers can't discriminate against domestic violence victims who need time off. 
  • Maine law grants reasonable protected domestic violence leave. 
  • Massachusetts law requires employers with 50 or more employees to give up to 15 days off for medical attention, securing new housing, court proceedings and other needs related to the domestic violence. 
  • New Mexico provides up to 14 days of protected leave. 
  • New York state prohibits discrimination against domestic violence victims. New York City and Westchester County require reasonable accommodations for domestic violence victims. 
  • North Carolina prohibits discrimination against victims for taking reasonable domestic violence leave. 
  • North Dakota allows state employees up to 40 hours of sick leave for domestic violence victims and their family members. 
  • New Jersey's law says an employee/victim is entitled to time off for treatment or counseling, and also says they have to be allowed to attend legal proceedings, civil or criminal, relating to the incident. 
  • Oregon requires employers with 6 or more employees to grant reasonable leave and prohibits discrimination. Portland also requires protected domestic violence leave.   
  • Philadelphia provides leave depending on the size of the employer. 
  • Rhode Island prohibits discrimination.   
  • Washington DC has a sliding scale for leave depending on how large the employer is.
  • Washington state provides reasonable leave. Seattle has its own leave ordinance and also bars discrimination. 

Now, back to Texas (and this applies to most other states too). Some things to look into before even thinking about firing this employee are:

Subpoena: If she has been subpoenaed to testify in the court proceedings, Texas Labor Code § 52.051 prohibits termination of an employee for complying with a subpoena. Many states protect people from being terminated for testifying under subpoena, especially crime victims.

Sex discrimination: If a male crime victim was not terminated under similar circumstances, then firing the female for being a crime victim could be illegal sex discrimination. Particularly if a male domestic violence victim was not fired, she might have a case. But any male victim of a violent crime could be a valid comparator if they were being threatened, stalked or subjected to anything that could potentially land in the workplace.

Disability discrimination: Therefore, there is an argument that she is being terminated due to a disability or being regarded as disabled.

FMLA: If she is suffering from depression, anxiety, PTSD or another condition resulting from the domestic violence, she could be entitled to FMLA. Offering that might be an alternative to termination.

Other discrimination: If a member of a different race, age, national origin, or other protected category was the victim of a similar crime and was not fired, she could argue discrimination.

I would think another avenue, rather than termination, would be to assist the employee in getting an injunction. Plus, the boss who was threatened could also be entitled to an injunction against him. Wouldn’t it be better to try to help her by keeping him out of the workplace? Wouldn’t that send a better message to other domestic violence victims? It would be a terrible message to send to other domestic violence victims. It could even make them afraid to report the crime to the authorities if they think they will be fired for being a victim.

Friday, July 7, 2017

Former Employer's Attorney Can Be Liable For Despicable Retaliation

In a case that has the management-side bar moaning and groaning, the 9th Circuit held that an attorney who set up an ICE deportation sting against a client's former employee could be held personally liable for retaliation. As if it weren't bad enough that this attorney represented an employer that used the employee's immigration status to bully them into staying with the company, then failed to pay wages due, this attorney then had the former employee, a milker for a dairy, deported. Indeed, he bragged that it is his practice to have employees who sue his clients deported:

Here's what the Court said about the facts:

Instead of complying with federal law, the Angelos wielded it as a weapon to confine Arias in their employ. When Arias informed Luis Angelo in 1997 that he had been offered a position with another dairy, Luis “responded that if [Arias] left to work at the other dairy, [Luis] would report the other dairy to federal immigration authorities as an employer of undocumented workers,” which Arias was. This threat caused Arias to forego his other employment opportunity and to remain with the Angelos.
. . .
On June 1, 2011, ten weeks before the state court trial, the Angelos' attorney, Anthony Raimondo, set in motion an underhanded plan to derail Arias's lawsuit. Raimondo's plan involved enlisting the services of U.S. Immigration and Customs Enforcement (“ICE”) to take Arias into custody at a scheduled deposition and then to remove him from the United States. A second part of Raimondo's plan was to block Arias's California Rural Legal Assistance attorney from representing him. This double barrel plan was captured in email messages back and forth between Raimondo, Joe Angelo, and ICE's forensic auditor Kulwinder Brar. Arias quoted these revealing exchanges in his current complaint:
. . .
Plaintiff became aware on June 22, 2011 that Defendant had provided information concerning Plaintiff to the immigration authorities. Fearing that he would be deported and separated from his family, Plaintiff suffered anxiety, mental anguish, and other emotional distress from Defendant's retaliatory action. 
On July 11, 2011, one month before trial, the parties participated in a settlement conference. In lieu of proceeding to trial on the wage and hour claims comprised within the 2006 Lawsuit, Plaintiff entered into a settlement and release of those claims, due in substantial part to the threat of deportation created by Defendant's communications with ICE. 
On information and belief, Defendant RAIMONDO's actions against Plaintiff are reflective of and consistent with his pattern and practice of retaliating against employees who assert their workplace rights. In fact, Defendant RAIMONDO has stated in a declaration filed in a court action that it is his practice to investigate the immigration status of plaintiffs who have brought legal claims against his clients.  
On at least five additional occasions, and consistent with his pattern and practice, Defendant RAIMONDO has contacted ICE with respect to employees who have asserted their workplace rights against employers whom Defendant RAIMONDO has represented, and has offered his assistance to ICE in apprehending those employees.

On May 2, 2013, Defendant RAIMONDO confirmed the above pattern and practice in an email he sent to Thomas Hester of the Office of Inspector General at the Legal Services Corporation, in which he stated, “The time when I have had litigants deported, I have always simply taken action rather than make any threats. The attorneys find out when their clients are already gone.”

Wow. Just wow. Every time I think I've heard the most despicable thing done to an employee possible, I hear something worse.

The Court's findings give me hope in an otherwise dismal landscape for employees:

Congress made it illegal for any person, not just an “employer” as defined under the statute, to retaliate against any employee for reporting conduct “under” or “related to” violations of the federal minimum wage or maximum hour laws, whether or not the employer's conduct does in fact violate those laws. ․ Moreover, “the remedial nature of the statute further warrants an expansive interpretation of its provisions. ․” 
Id. at 857 (second omission in original) (quoting Herman v. RSR Sec. Servs., 172 F.3d 132, 139 (2d Cir. 1999)). 
The FLSA is “remedial and humanitarian in purpose. We are not here dealing with mere chattels or articles of trade but with the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others ․ Such a statute must not be interpreted or applied in a narrow, grudging manner.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944). 
Accordingly, we conclude that Arias may proceed with this retaliation action against Raimondo under FLSA sections 215(a)(3) and 216(b). Raimondo's behavior as alleged in Arias's complaint manifestly falls within the purview, the purpose, and the plain language of FLSA sections 203(a), 203(d), and 215(a)(3).

I suspect that some federal courts will not view a lawyer's liability under the statute in the same way, but I think this is the correct conclusion. It's one thing to advise a client on whether a client can take a particular action. That should be protected by attorney-client privilege. But once the attorney crosses the line and personally takes retaliatory action, then they should be liable.

I think, at least here in Florida, the Florida Bar would look askance at any lawyer who set up a deportation sting at a deposition or mediation, but I have no idea how other Bars would look at it. Two Florida lawyers who set up an opposing counsel for a DUI sting were disbarred last year.

And this brings me to a pet peeve about employment law. Most management-side attorneys act like professionals. It's a job like any other, not to be taken personally. Some, on the other hand, consider law to be a blood sport and try to destroy the litigant (and sometimes the litigant's attorney) with all kinds of nasty out-of-court tactics. An employee suing a client should not be taken as a personal affront (and good luck making money as a defense litigator if nobody sues your clients). A lawyer making vicious attacks against a litigant (other than zealous representation in court) is completely unprofessional, and gives all lawyers a bad name. I hope more courts and Bars crack down on this kind of behavior.

Friday, June 30, 2017

Access The Ex-Boss's Email? Better Like Wearing Orange

In yet another example of the criminalization of employment law, a Tesla engineer was just convicted and placed on probation for accessing his ex-boss's email. On top of 5 years of probation, he has to provide restitution to the company, which claims it was damaged when he posted confidential information online.

The charges were two felonies and one misdemeanor that could have resulted in 6 years of prison time.

Bottom line is that there are some harsh laws that prohibit you from accessing any emails or computer information you aren't allowed to access. Once you're fired, you can't access anything with company passwords even if they don't change them or discontinue your access right away.

Even if you still work there, if you access something with someone else's password or that you know you aren't allowed to access, you could be committing a crime.

Expect the courts to continue to come down hard and harder on employees as we get more and more Trump appointees on the bench. Be careful out there.

Friday, June 16, 2017

The FBI Director Isn't A Protected Whistleblower, But You May Be

Some of you have already seen my article in Vox, Why It's So Hard To Say No To Your Boss - Even If You're The Directof of the FBI. In that article, I mention that Mr. Comey isn't protected under whistleblower laws. I wanted to follow that up with hope for the rest of working Americans. Here are some laws that protect those of us who aren’t the Director of the FBI:

·       Federal employees: Most federal employees and applicants for federal jobs are protected against retaliation for any disclosure of information they reasonably believe shows any violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

·       Employees of publicly-traded corporations: Sarbanes-Oxley is probably the most famous whistleblower law. It protects employees of publicly-traded corporations from retaliation for reporting violations of SEC rules and federal laws regarding fraud against shareholders.

·       Employees of government contractors: The False Claims Act  enables a private citizen to file a lawsuit in on behalf of the U.S. Government for fraud by contractors and other businesses that use federal funds. If you win, you can get big bucks because you get a percentage of the recovery, but there are lots of loopholes so get good legal advice. This law prohibits an employer from retaliating against an employee for attempting to report fraud against Medicare, Medicaid, FDA, GSA, HUD, USDA, U.S. Postal Service, NIH and the military, but not the IRS.

·       State Whistleblower Laws: Some states have whistleblower protection laws for most employees, government or private, and others offer whistleblower protection to government, but not private employees. Some states have no whistleblower protections. Senator Rubio’s home state of Florida, for example, has a whistleblower law that protects employees who object to or refuse to participate in illegal activities.

·       Laws With Built-In Protection: Some laws build in whistleblower protections for anyone who reports or objects to breaking them. Laws that have built-in protections against retaliation include federal and state anti-discrimination laws, Fair Labor Standards Act and state wage/overtime  laws, Occupational Safety & Health Act, Surface Transportation Assistance Act, Asbestos Hazard Emergency Response Act, International Safety Container Act, Energy Reorganization Act of 1974, Clean Air Act, Safe Drinking Water Act, Federal Water Pollution Control Act, Toxic Substances Control Act, Solid Waste Disposal Act, Comprehensive Environmental Response, Compensation, and Liability Act, Wendell H. Ford Aviation Investment and Reform Act, Pipeline Safety Improvement Act, Federal Railroad Safety Act, National Transit Systems Security Act, Consumer Product Safety Improvement Act, and Affordable Care Act.

·       Concerted action to improve working conditions: The National Labor Relations Act protects most non-government, non-supervisory employees from being retaliated against if they get together to discuss or to try to improve the terms and conditions of their employment. This is one law that might actually help you, assuming you aren’t a supervisor, if you want to complain that your boss is a jerk, about bullying, or about other activity that isn’t illegal.

There are different deadlines for taking legal action under each of these laws, and some are pretty short, so don’t wait too long if you think you were retaliated against. Talk to an employee-side employment lawyer if you are in doubt about your rights.

I'd also add this: if your boss is asking you to break the law, it’s time to start looking for another job and get the heck out of there.

Friday, June 9, 2017

Your Spouse Criticizes Your Boss On Social Media: Can You Get Fired For That?

The story about Kellyanne Conway's husband criticizing her boss, President Trump, on social media made me think about an issue that arises off an on in my employment practice: whether you can be fired for something your spouse does. If you are one of my regular readers, you probably aren't surprised that the answer is: of course you can.

Unless you have a contract or collective bargaining agreement, or unless you live in Montana, you are probably an at-will employee who can be fired for any reason or no reason at all. If your spouse does something that ticks off your boss, you can be fired for that.

Fair? No. Legal? Probably.

Yes, there are some exceptions. If, for instance, your spouse is also a coworker and reports or objects to discrimination, unpaid wages, or something illegal, then retaliating against you would be illegal retaliation against your spouse. However, few laws protect employees when their spouses are not coworkers.

Even states that have laws prohibiting employers from firing employees for legal off-duty activities probably don't protect you for your spouse's off-duty activities. So, while your employer can't fire you for, say, going to a wild party, they can probably fire you for your spouse going to the same party. If your spouse posts something that ticks your boss off, then even these very broad laws probably don't protect you.

Not only do you have to be careful what you post, but you need to make sure your spouse does the same. Social media posts are forever. Your spouse and you should never post anything you don't want on the front page of the company newsletter.

Friday, June 2, 2017

Can Litigation Last 27 Years? If You're Suing Government, Yes

This case out of Washington, DC is a good example of why I have been refusing to handle cases against government for many years. My last case against government lasted 10 years. After that, I was done.

So when people ask me why I don't handle cases against government, I can start using this sexual harassment case as Exhibit A. Bottom line with government is that it isn't their money. So whereas companies don't want to be bogged down paying legal fees and costs for years, government doesn't care. You can have appeals and remands and more appeals and remands ad nauseam.

We, as taxpayers, should be outraged by this. When they decide to fight tooth and nail for years, it is your money and it is my money they are spending. They need more staff with more litigation, so many government legal departments want to keep cases going to make sure they remain fully staffed. Better yet, they can hire more staff. Then those staff need supervisors. More promotions for everyone. An endless cycle.

In the meantime, the poor victim of discrimination, sexual harassment, whistleblower retaliation or other wrongdoing is stuck in an endless cycle of litigation. Many will give up. So the illegal practices will continue. More illegal practices equal more litigation. The only winners are the government legal departments.

Yes, I do realize that not all government legal departments treat litigation like employment insurance. Most are responsible with taxpayer money and resources. But enough do that it's discouraging to people who are thinking about standing up to illegal practices.

Isn't it better for everyone, especially taxpayers, if government cracks down on illegal practices quickly rather than dragging litigation on for 27 years? Shame on DC for putting this poor woman through hell.

Friday, May 26, 2017

Will My Employment Law Claim Show Up In A Background Check?

I'm constantly asked about whether certain actions against employers for discrimination and other issues will show up in a background check. Other than a lawsuit, most probably will not. And now, even with a lawsuit, a court just allowed a plaintiff to go forward with a sex discrimination suit as "Jane Doe" so her reputation would not be damaged.

So, what kinds of actions will and won't show up on a background check? Here are my thoughts:

Severance agreements: Negotiating a severance agreement should be confidential. While most employers put in the agreement that employees will keep the agreement confidential, I ask that this be made mutual. I don't want employers getting cut and saying something like, "I need to look at the agreement to see what I'm allowed to say." One of the things you can negotiate is what will be said to potential employers in references.

EEOC: While EEOC is a government agency, EEOC charges of discrimination are not generally discoverable. Only the employer and employee are entitled to copies of the charge and responses. While some employers and employees wrongly say that they are in a lawsuit once the EEOC filing is done, this is incorrect. EEOC is not a lawsuit. It is not public record. If EEOC files a lawsuit on your behalf (don't hold your breath) then the suit is public record.

NLRB: The NLRB investigation process is confidential. Once it goes to an administrative law judge and/or court, it becomes public record.

Internal complaint to HR: HR is supposed to keep your complaint of discrimination, whistleblower retaliation or other legal issues confidential. That being said, they also have to investigate. So people who work with you will likely know you complained. Filing an internal complaint is not a public record (unless you work for government, and then sometimes it is). So your employer could retaliate against you by telling potential employers that you complained, but that would be illegal retaliation if you complained about something that is illegal like discrimination. However, if you complained about your boss being unprofessional, incompetent or a bully, your complaint is not legally protected against retaliation.

Lawsuit: If you file a lawsuit, it is public record. It will almost certainly turn up in a background check. However, the lawsuit I mentioned above may start a trend of Jane and John Doe filings to keep this from happening. For the most part, that may be effective. However, if a potential employer dug deeper into a litigation file, it would likely be able to uncover your name in deposition notices and other filings. An ordinary name search background check would be thwarted by a Doe filing. So if you're thinking about suing an employer or former employer, a Doe filing is something to think about.

Friday, May 19, 2017

9th Circuit Decision Proves Need For Laws Banning Prior Salary Inquiries

A few weeks ago I wrote that some states are passing laws banning prospective employers from asking applicants about their salary history. The reason lawmakers give for this law is that basing salary on an applicant's pay with another employer locks in discrimination. This practice particularly impacts women.

A recent case out of the normally very liberal 9th Circuit demonstrates the need for laws banning salary history inquiries. The Court found in Rizo v. Yovino that an employer may legally justify paying women less than men where it based pay solely upon 5% above prior salary. The Court said that, under the Equal Pay Act, prior salary could be a factor other than sex that justified a pay disparity. The appellate court overturned the district court's ruling in favor of the employee:
The district court determined that, under the Equal Pay Act, prior salary alone can never qualify as a factor other than sex, reasoning that “a pay structure based exclusively on prior wages is so inherently fraught with the risk . . . that it will perpetuate a discriminatory wage disparity between men and women that it cannot stand, even if motivated by a legitimate non-discriminatory business purpose.”
The appellate court analyzed the employer's justification for the pay disparity:
The County has offered four business reasons for using Standard Operation Procedure 1440, under which starting salaries are based primarily on prior salary: (1) the policy is objective, in the sense that no subjective opinions as to the new employee’s value enters into the starting-salary calculus; (2) the policy encourages candidates to leave their current jobs for jobs at the County, because they will always receive a 5% pay increase over their current salary; (3) the policy prevents favoritism and ensures consistency in application; and (4) the policy is a judicious use of taxpayer dollars. But, the district court did not evaluate whether these reasons effectuate a business policy or determine whether the County used prior salary “reasonably,” as required by Kouba.
The Court noted that other circuit courts had held, contrary to their ruling, that prior salary was not sufficient justification for gender pay disparities, citing Angove v. Williams-Sonoma, Inc., 70 F. App’x 500, 508 (10th Cir. 2003); Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995); Price v. Lockheed Space Operations Co., 856 F.2d 1503, 1506 (11th Cir. 1988); and Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1570–71 (11th Cir. 1988). So yay for my own 11th Circuit.

Here's what the Court directed the district court to do on remand:
On remand, the district court must evaluate the four business reasons offered by the County and determine whether the County used prior salary “reasonably in light of [its] stated purpose[s] as well as its other practices.” Kouba, 691 F.2d at 876–77. We emphasize that because these matters relate to the County’s affirmative defense rather than to the elements of the plaintiff’s claim, the County has the burden of persuasion. See Maxwell, 803 F.2d at 446. Thus, unlike in a typical case under Title VII involving the burden-shifting method of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the plaintiff does not have to present evidence that the County’s explanation for the pay differential is a pretext for intentional gender discrimination. Rather, it is up to the employer to persuade the trier of fact that its stated “factor other than sex” actually caused the salary differential, that the stated factor “effectuate[s] some business policy,” and that the employer used the factor “reasonably in light of [its] stated purpose as well as its other practices.” Kouba, 691 F.2d at 876–77. Of course, the plaintiff is free to introduce evidence of pretext (or any other matter that casts doubt on the employer’s affirmative defense) if it chooses to do so. Maxwell, 803 F.2d at 446.
This case was not a disparate impact case, so I wonder what would happen if the same set of facts were raised under the theory that a facially neutral practice of basing pay on prior salary alone has a disparate impact on women.

In the meantime, this case should give the legislators and lobbyists who are pushing laws to ban salary history inquiries some ammunition to prove that salary history inquiries are bad for women and are thus bad public policy.

Friday, May 12, 2017

Dear Business Lawyers: Stop Trying To Get Employees To Waive Their Unemployment Benefits

Things you didn't think you had to say but apparently do. In Florida it is still illegal to try to get an employee or former employee to waive their right to apply for unemployment. It's a crime. Yet I've seen a couple of draft releases in proposed severance agreements attempting to do exactly that. And I also recently got a demand email complaining that a client had signed a release and was therefore breaching by filing for unemployment.

Let's be clear. You can't ask an employee to release or waive their right to unemployment in my home state of Florida. Period.

Here's what the statute says if you don't believe me:
443.041 Waiver of rights; fees; privileged communications.—
(1) WAIVER OF RIGHTS VOID.—Any agreement by an individual to waive, release, or commute her or his rights to benefits or any other rights under this chapter is void. Any agreement by an individual in the employ of any person or concern to pay all or any portion of any employer’s contributions, reimbursements, interest, penalties, fines, or fees required under this chapter from the employer, is void. An employer may not directly or indirectly make or require or accept any deduction from wages to finance the employer’s contributions, reimbursements, interest, penalties, fines, or fees required from her or him, or require or accept any waiver of any right under this chapter by any individual in her or his employ. An employer, or an officer or agent of an employer, who violates this subsection commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
After a brief bout of research, it looks like lots of other states also prohibit this practice. I've found laws prohibiting such waivers in New York, Texas, Minnesota, Maryland, California, North Carolina, and Missouri. That's a pretty good sampling of pro-employer and pro-employee states, so I'm guessing your state may prohibit this as well.

For some reason I have to say this about every ten years or so. The management-side employment lawyers know better. It's the employers who handle business/corporate law who decide to dabble in employment law who need to be reminded.

Therefore, I am saying it. Now cut it out and stop torturing people who have lost their jobs.

Rant over.

Friday, May 5, 2017

If You Have A Preexisting Condition, Choose COBRA or ObamaCare Over Your Mortgage

It used to be that when people lost their jobs, there was only one way to keep insurance coverage, and that was COBRA. The only problem is that when you lose your job, you have to pick and choose what bills to pay and COBRA is crazy expensive. Most people had to go bare. If they had preexisting conditions, it was literally a matter of life and death because they would never get insurance again.

Then came the Affordable Care Act, which is the same as ObamaCare if you haven't already figured that out. The ACA allowed people who lost their jobs to get alternative insurance that was much cheaper than COBRA. Plus, it both banned insurance companies from denying coverage due to preexisting conditions and also from charging more to those with preexisting conditions. So, yes, insurance rates went up for those who were healthy, but it saved billions in government-subsidized healthcare. The reason being that anyone who was uninsured had to go to publicly funded hospitals for all their healthcare needs.

Since the election, I've been warning people who lose their jobs to make sure they elect either ACA or COBRA, and under no circumstances to lose coverage if they have a preexisting condition because I thought preexisting condition coverage would be lost when Trump and the Republicans started to gut the ACA.

I've been accused of being an alarmist, but that's exactly what the latest proposal would do. While it would still prohibit insurers from denying health insurance to those with preexisting conditions, it allows them to raise premiums. A recent study made these findings:
Based on our analysis, we estimate that individuals with even relatively mild pre-existing conditions would pay thousands of dollars above standard rates to obtain coverage. For example, because an individual with asthma costs an issuer 106 percent more than a healthy 40-year-old, she would face a premium surcharge of $4,340. The surcharge for diabetes would be $5,600 per year. Coverage could become prohibitively expensive for those in dire need of care: Insurers would charge about $17,320 more in premiums for pregnancy, $26,580 more for rheumatoid arthritis and other autoimmune disorders, and $142,650 more for patients with metastatic cancer.
Because there are few things that can bankrupt you as quickly as medical bills, if you lose your job and have to choose between paying your mortgage and paying for insurance, the wise decision might just be to pay for insurance. While your mortgage company may work with you to allow you time to catch up, losing your coverage if the Republicans manage to repeal preexisting condition coverage may literally kill you.

If you care about this, call your Congress member and Senator now and tell them to stop this folly before they kill a bunch of people.

Friday, April 28, 2017

Fox Proves It: Sexual Harassment Is Contagious

I've always said that sexual harassment is not about sex: it's about power. In that way it's just another form of bullying. And if you remember your playground bullies, if they got away with it once, they accelerated their behavior. Sexual harassers, like bullies, engage in more and more extreme behavior until someone stops them.

The other thing about playground bullies is that their behavior is contagious. Some weaker personality chimes in to get approval from the alpha bully. Then others join in the bullying. Well, it happens with sexual harassment too, and Fox just proved it.

We have all seen the headlines. First it was Roger Ailes, the alpha harasser, who got away with sexual harassment for years before he was ousted. His behavior set the tone for the entire corporation.

From there, the women at Fox were emboldened, and they spoke up against Bill O'Reilly. After millions in payouts, the network finally got rid of him too. But it took a long, long time, didn't it?

And now there's a new allegation, this time about Sean Hannity. I'm not surprised if it's true, because sexual harassment is truly contagious. If one gets away with it, then it spreads. If this really happened, then I bet others will come forward.

This is yet another reason for employers to take sexual harassment complaints seriously. If the victim is ignored or fired, if the harasser is allowed to continue, then pretty soon you have a full-blown Animal House at work. And does any shareholder really want that going on? Does that in any way help the work get done? No, of course not. It's a distraction. It destroys morale. And as the Fox multi-million payouts demonstrate, it ultimately destroys the bottom line.

Women were afraid to report the harassment at Fox, until the first woman finally stood up, and then others came forward. That's just what happens with those playground bullies: when the first kid stands up to them then others get the nerve to stand up too. Which means that reporting sexual harassment is also contagious.

When the company takes the sexual harassment complaint seriously and makes sure the harasser is stopped, then other victims won't be afraid to come forward.

So, HR folks, take those sexual harassment complaints seriously and stop those harassers the first time they harass. Or ultimately they'll grab you in the p***y and you shouldn't be surprised.

And victims of sexual harassment, try to come forward. You have to report it to HR and give them a chance to fix it according to the Supreme Court, and that's very, very hard. But if you don't report it, then the harasser will do it to other women, and the harassment will get worse. It may even spread. If you stand up to the harasser, then other women will be empowered to stand up for themselves.

Monday, April 24, 2017

States With Pro-Employee Laws: No Asking About Applicant Salary History

In a movement that started in Massachusetts, states and cities are starting to ban employers from asking applicants about their salary history. The reason behind the legislation is that basing pay on prior salary can lock in pay discrimination. The sponsor of the Philadelphia ordinance explained: “Simply put, when a woman is paid less at the beginning of her career she will continue to earn less throughout her career. By eliminating the question of salary history we will be one step closer to decreasing the wage gap.”

The Massachusetts law makes it illegal to:
[S]eek the salary history of any prospective employee from any current or former employer; provided, however, that a prospective employee may provide written authorization to a prospective employer to confirm prior wages, including benefits or other compensation or salary history only after any offer of employment with compensation has been made to the prospective employee.
New York is the most recent city to ban salary history inquiries. Puerto Rico also has a salary history ban. Similar proposed laws are pending in D.C., California, New Jersey, New York State and in Congress (that one won't pass, but it's a nice try).

This is a good move to try to end the pay gap that still exists between men and women. It could well help stop the cycle of pay disparity for women and minorities.

And really, what business is it of anybody what you make now? Employers should know what they plan to pay for a job and actually pay it. While nothing stops you from saying no to such inquiries now, unless you're a highly sought after recruit saying no may end the interview.

For multistate employers, this may have an impact on the way they conduct interviews and prepare applications now. For others, now is the time to start rethinking this outdated and unduly nosy practice.

Friday, March 31, 2017

Trump Says It's Okay For Federal Contractors To Break Employment Laws

Another week, another prediction sadly fulfilled. On December 2, I did a list of executive orders protecting employees of federal contractors that I predicted would be rescinded under Trump. A very important one just bit the dust.

The Fair Pay and Safe Workplaces Rule provided two important protections for employees that are now gone:

Blacklisting for employment/labor law violations: Anyone applying or bidding for a federal contract of $500,000 or more was required to disclose any employment or labor law violation. They had to disclose any administrative merit determination, arbitral award or decision, or civil judgment rendered against them within the preceding three-year period for a violation of any of a list of labor and employment laws, plus they have to update their violation information every six months and, for some contracts, obtain the same violation information from their covered subcontractors. This meant that federal contractors needed to be very afraid of things like a "cause" finding from EEOC. Punishment for repeat offenders could be up to cancellation or denial of a contract.

I predicted that employers would fear no more because they knew the rule would be gone soon.

No mandatory arbitration: The same executive order also banned agreements that require mandatory arbitration for discrimination and sexual harassment claims. Specifically, "for all contracts where the estimated value of the supplies acquired and services required exceeds $1 million, provisions in solicitations and clauses in contracts shall provide that contractors agree that the decision to arbitrate claims arising under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after such disputes arise." This also applied to subcontractors providing services or supplies over $1 million.

Federal contractors may now resume requiring employees to arbitrate.