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, 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.