Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, March 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 On December 2, I did a list of executive orders protecting employees of federal contractors that I predicted would be rescinded under Trump.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.


Monday, March 27, 2017

New Bills In Florida That Will Impact #Employees If Passed

The Florida legislature is in session through May. They may or may not pass some legislation that will affect employees and employment law. Be afraid. Be very afraid. Here are some of the bills to watch:

SB 160 - Minimum WageRevising the formula for the adjusted state minimum wage, etc.  See HB 945. This is an attempt to slowly bring Florida's minimum wage up to a living wage by adjusting an extra $1 - $1.50 per year until 2021. Since Republicans hate the minimum wage to begin with, it won't pass. 

SCR 194:  The annual and inevitably failing attempt to ratify the Equal Rights Amendment. Sigh.

HB 319Discrimination in Labor and EmploymentCreates "Helen Gordon Davis Fair Pay Protection Act." This bill, which won't pass. would add gender identity to the categories of illegal discrimination, prohibit pay and other discrimination based on sex and gender identity,  and prohibit employers from punishing employees for discussing and comparing wages and benefits. 

HB 443Verification of Employment EligibilityRequires employers to use E-Verify system to verify employment eligibility; prohibits employer from knowingly or intentionally employing unauthorized alien. This bill really has more of an impact on employers, and criminalizes the hiring of illegal aliens. However, it will make it more difficult for anyone with an accent or foreign-sounding name to get a job if employers become skittish about possible jail time for a bad hiring decision. This one has a shot at getting passed as we continue anti-immigrant fever in this country, but I'm guessing the Chambers and business interests will freak out and oppose it. My prediction is it probably won't pass.

HB 623Prohibited DiscriminationProvides that sexual orientation & gender identity are impermissible grounds for discrimination, provides exception for constitutionally protected free exercise of religion.  Related bills are SB 666, HB 659, SB 742. Despite the fact that major corporations and business interests support this, and the fact that it will be good for Florida's tourism and economic interests, this has failed every time it has been attempted. It will fail again.

HB 1255Florida Commission on Human Relations. This bill would adjust quorum requirements for the Commission and would make clear that the statute of limitations for suing for discrimination is 4 years from the date of discrimination, which is the law now but is continually the subject of litigation. Mostly, it guts the discrimination provisions regarding private clubs. It could pass.

HB 7047: Would deregulate/change regulations regarding a huge list of professions, including labor organizations.

Guns in workplaces: There is a giant batch of pro-gun legislation pending that could well pass, and it will affect workplace safety and also employee rights to carry. These bills include the right to bring guns to colleges and universities, passenger terminals of airports, public meetings, basically anywhere, career centers,  athletic events of schools and colleges,  the Florida legislature (okay, this would serve them right). Then there's SB 140 and SB 646 that would make Florida an open carry state. If business organizations aren't freaking out and screaming bloody murder, they should be. Can you imagine what will happen if a bunch of Floridians are running around with guns in all these places? Mayhem will ensue. And then there's the one that is the voice in the wilderness that would increase penalties for carrying weapons into schools and school events. It won't pass. Neither will the one adding public theaters and performing arts centers to the list of places you can't carry weapons.

Medical marijuana: Of the many bills relating to marijuana use, not one would protect employees from being fired for using prescribed marijuana, even the low THC kind. For shame.

SB 1208: Would add intentional touching in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering such areas to the crime of sexual battery, which could give sexual harassment victims more ammunition. It's by a Democrat so it probably won't pass.

SB 1148: Unemployment compensation. Would provide for an alternate base period for those currently being screwed out of unemployment benefits for arbitrary calendar reasons, would punish employers who refuse to give wage/employment info (which happens all the time now and delays unemployment benefits by weeks or months) and would add to the reasons an employee can resign and still get benefits. There is no way this will pass. Florida has done everything it can to screw people out of their unemployment benefits and will continue to do so.

HB 575: Threats to kill or do bodily harm. This one will affect many employees. It makes it a felony to post on the Internet or in social media, as well as email, etc. any threat to kill or do bodily harm. This means anyone who posts, "I could just kill my boss for what happened today," or "I could just strangle my coworker," whether or not there was any intent to do the harm and whether or not it was just venting, could face felony charges. This bill could be crazy overbroad and could result in lots of employees ending up in handcuffs. Right now, the threat has to be made to the actual person. Now, if anyone else sees the threat you can be prosecuted.

HB 561: Providing for a veteran's preference tax credit, which may help veterans get employment.

HB 31: Would "ban the box" and prohibit employers from asking about arrests/convictions and from refusing to interview based on criminal arrests and convictions. They can still do background checks once a conditional offer of employment is made. It won't pass.

SB 126: Would loosen the state's anti-nepotism laws. Somebody has a relative who needs a job. Could it be somebody who also wants to turn the state into the wild west? Could be.

HB 11: Would make it way easier to decertify labor organizations/labor unions. It will probably pass.

The good news is there are no bathroom bills this year. Will the legislature do anything to help employees this year? Not likely. I'll let you know if they do.

Wednesday, March 22, 2017

Climate Change Denial To Be New Protected #Emplaw Category?

Yes, I've been absent for a bit. I was caught up in an arbitration (results unknown at this point) so had a good excuse. Anyhow, I saw this tidbit and had to share it. A Maine lawmaker has proposed a bill that would make an employee's opinions about climate change a legally protected category.

To his credit (or maybe he just didn't think it through), although the stated purpose of the bill is to protect climate change deniers, the protection goes both ways. If passed, the bill would also prevent conservative employers from firing employees who express a belief that climate change is real.

An Act To Protect Political Speech and Prevent Climate Change Policy Profiling” was filed to counter a racketeering lawsuit by several states' attorney generals against Exxon relating to misleading the public and investors about climate change. 

The bill summary says:
The bill specifically prohibits the attorney general from investigating, joining an investigation initiated by another state or the federal government or prosecuting any person based on that person’s protected political speech. It also prohibits the attorney general from using the attorney general’s prosecutorial power to favor or disfavor protected political speech.
The bill also prohibits the state from favoring or disfavoring any person based on the person’s climate change policy preferences with regard to grants, contracts or employment.
I wonder how the state's chambers of commerce and business lobbyists will react to adding yet another protected category to the state's anti-discrimination laws (since it only applies to the state and not private employers, they may not care). Will climate change beliefs end up as another legally-protected category? If so, what's next? Russian hacking denial? Sincerely held belief in every single thing Fox news says? Stay tuned.