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, 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.