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.

Thursday, September 19, 2019

More States Fight Back On Low Wage and Surprise Noncompetes

Once legislators woke up to the fact that employers were running amok with noncompete agreements, imposing them on sandwich makers and other low-level employees, some states took action. Here are some new state laws that limit noncompete agreements:
  • MaineThe Act to Promote Keeping Workers in Maine, which went into effect this week, bans no-poach or non-solicitation agreements with other employers; prohibits noncompetes for employees earning at or below 400% of the federal poverty level, mandates pre-employment disclosure of non-compete agreements; says non-competes can't take effect until after one year after the employee is hired or 6 months after the employee signs the agreement, whichever is later; and imposes $5000+ fines for violations.
  • New Hampshire: New Hampshire already required employers to provide a copy of a required non-compete agreement to potential employees before the employee accepted any offer of employment. Starting September 8, NH employers can't force low-wage employees, meaning “an employee who earns an hourly rate less than or equal to 200 percent of the federal minimum wage,” to sign noncompetes.
  • Rhode Island: The Rhode Island Noncompetition Agreement Act, signed in July, and going into effect next year, will bar employers from entering into or enforcing noncompetes with hourly employees, undergraduate or graduate student interns, employees 18 or younger, and low wage employees (those employees whose annual earnings are not more than 250% of the federal poverty level).

Michigan has a bill working its way through the legislature limiting noncompetes. So do Vermont and Pennsylvania.

If you think sandwich makers and other low wage employees shouldn't be prohibited from moving on to better paying jobs, and that employers shouldn't be able to surprise new employees with noncompetes after they start, tell your state legislators to get with it and join the pro-employee movement banning low wage and surprise noncompetes.


 




Sunday, September 1, 2019

You Don't Have To Work In Dangerous Post-Hurricane Conditions

After a storm, I usually get lots of calls and emails about employers making employees work in conditions they deem unsafe so I thought I'd repost this for those affected by Dorian. In general, you don't have to work in unsafe conditions. 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.

Friday, August 30, 2019

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

It's that most awful time of the year, that is, time to re-run this popular and necessary column. I hope you make out okay in Hurricane Dorian and suffer no damage. However, you may be wondering if you're getting paid.


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 (so maybe it’s a good time to start complaining to your legislators). If it veers nortn, South Carolina has some protections for state employees but none that I've found for private sector employees.  North Carolina does have a law regarding employer adverse weather policies (they aren't required to have them though):
If an employer does establish an adverse weather condition policy, then pursuant to N.C.G.S. §95-25.13(2), the employer must: "Make available to its employees, in writing or through a posted notice maintained in a place accessible to its employees, employment practices and policies with regard to promised wages." The employer must comply with its own adverse weather policy until such time as the employer changes its policy in writing, notifies its employees of such changes prior to the effective date, and does not take away retroactively any benefits already earned, pursuant to N.C.G.S. §95-25.13(3).

Disaster Unemployment Benefits: If your state is declared a disaster, 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 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.

Tuesday, August 27, 2019

Clearing Up 10 Common Misconceptions About Employment Law

I'd like to quickly clear up some common misconceptions about employment law:

  1. Breaks: There is no federal (or Florida) law requiring breaks for adult employees.
  2. Reason for firing: No, your employer doesn't have to give you a reason for firing you in Florida or most states. Some states do require that employers give a reason in writing, but it's not the majority. The good news is the failure to give a reason could prevent them from getting a summary judgment based on having a legitimate reason to fire you.
  3. Right to work: Right to work does not mean that noncompete agreements can't be enforced. It has absolutely nothing to do with noncompetes. It has to do with whether you have to pay union dues to work in a union workplace. It is a measure meant to weaken/destroy labor unions.
  4. Harassment: Bullying, harassment and hostile environment are not illegal in any state but Tennessee, and that's only for government employees. Hostile environment or harassment is illegal if it is because of race, sex, age, national origin, disability or other protected class.
  5. Retaliation: If you complain about bullying or hostile environment that isn't due to a protected class, you aren't legally protected against retaliation.
  6. Noncompete agreements: Noncompetes are frequently enforced in Florida. It's one of the most anti-employee states in the nation. Stop telling people noncompetes are never enforced here. Seriously.
  7. Firing: Yes, your employer can fire you over the phone or by text. There is no law saying it has to be done in person or with an HR person present. There is no particular way an employer has to fire you unless you have a contract saying otherwise.
  8. Unfair treatment: Yes, your employer can be arbitrary. They don't have to treat everyone the same. They can be jerks. What they can't do is treat people differently due to age, race, sex, national origin, disability or other protected class.
  9. Doctor's note: Yes, you can be fired for missing work even if you have a doctor's note. Unless you are covered by FMLA (worked at least a year, employer has at least 50 employees, absence for serious medical condition) or the absence relates to a disability, you can be fired for missing work when you're sick.
  10. FMLA and vacation/sick time: Don't wait until you use up your sick or vacation time to put in for FMLA. They go hand in hand. If you have accrued paid time off, then your FMLA is paid. Otherwise, it is unpaid. 
These are not by any means all the misconceptions I encounter about my area of practice, but they are some recent ones. Bottom line is don't listen to your non-lawyer friends when they opine about your legal rights. And frankly some non-employment lawyers get some of this stuff wrong (like the enforceabilty of noncompetes and right to work). When in doubt, talk to an employment lawyer in your state about your rights.




Wednesday, August 21, 2019

How Transgender Discrimination Cases Affect Straight Employees

There's a case in front of the Supreme Court right now that will answer whether employers may discriminate against transgender workers. The orange one's administration says employers should be able to discriminate against trans people. If you think that case won't affect you because you're straight or not transgender, think again.

When I was starting out in law practice, a judge decided that women were prohibited from appearing in his court in pants. There was an outcry, of course, and the judge had to reverse course. I didn't wear anything but pants in court for years after that, and still mostly wear pants. The Department of Justice has supported the funeral home owner in the transgender discrimination case, and that owner has specifically stated that he would fire any woman who refused to wear a skirt to work. The DOJ thinks that's just fine and dandy.

Transgender discrimination is part of sex discrimination, and that's why some courts have said its illegal. The theory is that trans people don't meet gender stereotypes of what a man or woman should look like, dress like and behave like, and that if they were another gender they wouldn't have any issues.

These cases impact more than just trans employees because they affect any worker that doesn't fit in with sexual stereotypes. A woman that wants to wear pants, a man that doesn't like football, a woman that drinks beer and watches sports with the guys, a man that enjoys sewing, a woman who drives a muscle car, a man who wears pink clothes, the list can go on and on of behaviors and appearances that might not meet a boss's expectations of what a man or woman should be.

If you look back at other discrimination cases, you can see that they had a positive impact on others outside their protected class. Sex discrimination cases involving height and weight requirements for police and fire allowed smaller men to choose those professions as well as women. Disability discrimination cases involving wheelchair access also allows parents with strollers easier access to buildings. By eliminating arbitrary restrictions on employment and accessibility, we make things better for many people.

So if you aren't typical of your gender, if you don't fall into 100% of what people traditionally think your gender should be (and isn't that most of us in some way?), or if you just want to wear pants or pink to work, then you should be rooting for the trans workers who are fighting for legal protections against discrimination. Let's not go back to the bad old days of strict gender roles in society.

Monday, August 12, 2019

Can You Be Fired If Your Boss Finds Out You're Leaving, Or If You Give Notice?

So you told your boss you might be quitting. Or you gave notice that you're leaving in three months. Can your boss fire you or shorten your notice period? The answer is probably yes.

I assume you don't have a contract saying you can only be fired for cause. Assuming you don't, you're an at-will employee who can be fired for any reason or no reason at all. They can't fire you for an illegal reason, like discrimination, but can fire you for any other reason.

If your boss knows you won't be around much longer, then she can protect herself by looking for a replacement. Once your boss finds out you're leaving or even thinking about leaving, you're probably on your way out. From your boss's perspective, it isn't really fair to your boss to leave her in limbo about your plans. That means she is within her rights to hire someone to replace you and send you on your way.

I suggest you keep your plans to yourself until you are 100% sure. If you dither with the dates, yet telling her you'll be gone eventually, you have alerted her that she'd soon have a vacancy. The better plan is to wait until you've booked the moving vans and sold the house, then give a few weeks of notice.

However, even if you give notice, your boss doesn't have to honor it. You can be fired for giving notice, which is pretty stupid on the boss's part if you ask me. Who would ever give notice if they do this to employees?

To sum it up:
  • Your boss doesn't have to wait until you give notice. Once they know you're leaving, replacing you is fair game.
  • Your boss doesn't have to let you take back your notice. If you said you were leaving two months ago, then changed your mind, you are probably gone.
  • You don't have to call it "notice" or anything specific for it to be official. If you say you're leaving soon, you just quit.
  • Your boss can shorten your notice. If you say you're leaving in October, they can say goodbye to you in August. They don't have to let you work out your notice period. You're terminable at-will unless you have a contract saying otherwise. 
My one caveat is if you know of other employees of a different race, age, sex, national origin, or other protected category who were treated differently, then you might have a discrimination case. However, your damages would be limited to your notice period, so that may not be worthwhile pursuing.

Be careful what personal information you share at work. If your employer finds out you're planning on leaving, you may be out the door sooner than you think.

Monday, August 5, 2019

Some Florida Physician Noncompetes Are Invalid

For the first time in many years, the Florida legislature actually did something pro-employee. Well, at least, pro-doctor. Here's the new law:
542.336 Invalid restrictive covenants.—A restrictive covenant entered into with a physician who is licensed under chapter 458 or chapter 459 and who practices a medical specialty in a county wherein one entity employs or contracts with, either directly or through related or affiliated entities, all physicians who practice such specialty in that county is not supported by a legitimate business interest. The Legislature finds that such covenants restrict patient access to physicians, increase costs, and are void and unenforceable under current law. Such restrictive covenants shall remain void and unenforceable for 3 years after the date on which a second entity that employs or contracts with, either directly or through related or affiliated entities, one or more physicians who practice such specialty begins offering such specialty services in that county.
For doctors whose employer has a monopoly on an entire specialty practice area in a county, they will see some relief from noncompetes with this new law. It probably only helps those in rural counties, but it's a baby step in the right direction.

Of course there's a lawsuit. 21st Century Oncology has filed a lawsuit to stop the law. They lost their bid for an emergency injunction, but the suit is still pending.

I'll keep you posted if anything changes, but for the moment this is the law in Florida.

Monday, July 29, 2019

Recording Meeting In Office Protected by National Labor Relations Act

For those of us in all-party consent states like Florida, it's always an issue whether employees may record conversations with supervisors surreptitiously. Now employees have another weapon in their arsenal to support the legality of office recordings: the National Labor Relations Act (the Act).

In a recent decision, a National Labor Relations Board Administrative Judge held that a recording of a meeting where unionization was being discussed was both legal and protected by the Act, even though company policy prohibited such recordings:
Section 7 of the Act reads as follows: 
Employees shall have the right, to self-organization, to form, join, or assist labor 35 organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a 40 condition of employment as authorized in section 8(a) (3). 
29 U.S.C. § 157. Thus, employees have a statutory right to engaging in union and protected concerted activities, or to refrain from any and all such activities. Cf. Stanton Industries, Inc., 313 NLRB 838, 848 (1994) (noting the Board has “pointed out over and employees have the 45 right to engage in union activities, as well as the right to refrain from engaging in union activities, which rights are guaranteed by Section 7 of the National Labor Relations Act.) JD(SF)–21–19 14 
Regarding Mansour, I find that his actions were protected by Section 7 of the Act. In the January 9 captive-audience meeting Respondent was presenting its position to employees and attempting to persuade them to vote the Union out. Mansour had never previously been in a 5 union, he is dyslexic, and English is his second language. He decided to record the meeting to listen to it more carefully later and get a better understanding of what being discussed. Mansour was simply documenting the meeting in order to study Respondent’s position, so he could make an educated choice when voting to either retain or decertify the Union. Respondent argues his actions are not protected because he did not discuss his intentions to record the meeting with 10 anyone else. However, I find Respondent’s argument misguided.
The judge also found that the recordings were legal under Washington law because the subject matter, unionization, was not private and the employer could not restrict employees from discussing what happened in the meeting. Further, the judge determined there was no expectation of privacy in the meeting.

So, while this decision only applies where the meeting is about unionization or working conditions on behalf of coworkers as well as yourself, and only if you aren't in management, and only if you work for an employer covered by the Act (which is most non-government employers), it may keep you from being fired (or prosecuted) if you get caught recording a workplace meeting.

Monday, July 22, 2019

What Unions Can Do To Help Immigrant Members

The National Immigration Law Center has this helpful information for unions that want to help their members in this time of ICE raids:
If you belong to a labor union, there are ways it can help you. You should talk to your union representative about your concerns. If it would make you feel more comfortable, ask some of your co-workers to go with you to talk to your representative. Your union contract might have language that protects union members, such as an agreement with the employer that has one or more of the following provisions:
  • The employer will not allow any Immigration officers to enter the workplace without a valid warrant signed by a federal judge or magistrate
  • The employer will immediately notify the union if the Immigration authorities contact the employer for any purpose so that the union can take steps to inform its members about their legal rights or to help them obtain legal assistance.
  • The employer will allow lawyers or community advocates brought by the union to interview employees in as private a setting as possible in the workplace. The union might also have a legal plan, which provides workers with immigration attorneys.
  • The employer agrees not to reveal the names, addresses, or immigration status of any employees to Immigration, unless required by law.
  • The employer will not participate in any computer verification of employees’ immigration or work authorization status.
I hope labor unions that don't have these provisions in place will look at ways they can negotiate to help their immigrant members.

Tuesday, July 16, 2019

What To Do If ICE Shows Up At Your Workplace (For Employees)

Since it looks like the ICE raids have started, I thought I'd publish this helpful information put out by Penn State Law's Center for Immigrants’ Rights Clinic:

All people living in the United States, including undocumented immigrants, have certain U.S. Constitutional rights.  
If immigration officers (ICE) come to your work place, they must have a valid search warrant or the consent of your employer to enter non-public areas. If you are undocumented and immigration officers come to your work place, be aware of the following: 
  • Do not panic and do not run away. If you are frightened and feel like you need to leave, you can calmly walk toward the exit. 
  • If you are stopped, you may ask if you are free to leave. If the officer says no, do not try to exit the building. 
  • If you are questioned, you may tell them you want to remain silent. 
  • You have the right to remain silent. You do not need to speak to the immigration authorities or answer any questions. 
  • If you are asked where you were born, or how you entered the United States, you may refuse to answer or remain silent. 
  • If you choose to remain silent, say so out loud. 
  • If they ask you to stand in a group according to immigration status, you do not have to move, or you can move to an area that is not designated for a particular group. 
  • You may show a know-your-rights card to an officer that explains that you will remain silent and wish to speak to a lawyer. 
  • You may refuse to show identity documents that say what country you are from. 
  • Do not show any false documents and do not lie. 
  • You have the right to speak to a lawyer. If you are detained or taken into custody, you have the right to immediately contact a lawyer. 
  • Even if you do not have a lawyer, you may tell the immigration officers that you want to speak to one. 
  • If you have a lawyer, you have the right to talk to them. If you have a signed Form G-28, which shows you have a lawyer, give it to an officer. 
  • If you do not have a lawyer, ask an immigration officer for a list of pro bono lawyers. 
  • You also have the right to contact your consulate. The consulate may be able to assist you in locating a lawyer. 
  • You can refuse to sign any/all paperwork until you have had the opportunity to speak to a lawyer. 
  • If you choose to sign something without speaking to a lawyer, be sure you understand exactly what the document says and means before you sign it.

Even if you aren't an immigrant, you can help coworkers by having this information handy in case of an ICE raid.

Wednesday, July 3, 2019

Enjoy Your Summer Internship - You May Never Work In Your Field Again

In a new low for management side, the Wall Street Journal exposed the ugly practice of intern noncompetes. That's right. Intern. Noncompetes.

Let me get this straight. A college or high school student goes to work for little or no pay, and they are handed a bunch of papers to sign. They're so thrilled at the opportunity to work for this company, they don't read. They just sign. They never get a copy of what they signed.

Surprise! After they graduate, they get their dream job in the industry, and along comes the nastygram. "Dear John, You aren't allowed to work at your dream job because you signed a noncompete. You can't work in your field for two more years. By then, all the entry level jobs will be taken. Enjoy your work at McDonald's flipping burgers." And the letter to John's employer: "Dear New Employer: You hired John. He signed this noncompete. If you don't fire John, we'll sue you, your mother, your dog, and everyone you ever met."

So John is fired, and he's fighting a big corporation from the position of being unemployed. The new employer now has a bad taste in its mouth for John, so he's lost that opportunity. He's out of his field and unable to fight. Lesson: read everything before you sign, and keep copies. If you can't live with it, don't sign.

Yes, there are defenses to noncompetes. But to fight them, you have to be able to afford an attorney and court costs. Most people, especially recent college grads, can't afford that.

My state's Senator, Marco Rubio (with whom I almost never agree, except now) has proposed a bill that would prohibit noncompetes for hourly employees. That would be a great start.  Democrats have repeatedly tried and failed to limit noncompetes over the years, so maybe a Republican can get his colleagues to listen.

Some states, like Massachusetts, have also banned noncompetes for hourly and low wage employees. Illinois banned noncompetes for low wage workers. California, Oklahoma and North Dakota ban most noncompetes. There are lots of bills pending that would address problems with noncompetes in various states.

I think luring interns in with the promise of job opportunity and college credit, then making them sign away their right to work in their field, is unconscionable. If you agree, support any elected official's efforts to limit or ban noncompetes.  And vote with your money: don't do business with companies that have obnoxious noncompetes for interns and low wage employees.

Friday, June 28, 2019

Dear Employers: You Can Go To Jail For Firing Employees Due To A Garnishment

Every once in awhile a worker comes to me after having been fired right after a court issues a garnishment order against them for child support (or another debt). This is a violation of both federal and many state’s laws. It is absolutely illegal in Florida. Here are some laws that protect employees from firing due to garnishment:

Consumer Credit Protection Act: This law limits the amounts that can be garnished and sets out the procedures for garnishing wages for any debt. Many employers think this is a pain, so they forget that the law also prohibits employers for firing an employee if they’re garnished for a single debt. If you get a second garnishment, Federal law doesn’t protect you, but state law might. Florida law definitely does.

Penalties Under Federal Law: If your employer fires you after one garnishment, you can get a court order requiring them to reinstate your job, plus back pay. The Department of Labor can sue for you. Employers who willfully violate the law against retaliation can be prosecuted criminally and fined up to $1,000, or imprisoned for not more than one year, or both.

Florida Law: Fla. Stat. Sec. 61.12 provides, regarding child support garnishment: "Any disciplinary action against the employee by an employer to whom a writ is issued pursuant to this section solely because such writ is in effect constitutes a contempt of court, and the court may enter such order as it deems just and proper." Under Fla. Stat. Sec. 61.1301, "A person may not discharge, refuse to employ, or take disciplinary action against an employee because of the enforcement of an income deduction order. An employer who violates this subsection is subject to a civil penalty not to exceed $250 for the first violation or $500 for any subsequent violation. Penalties shall be paid to the obligee or the IV-D agency, whichever is enforcing the income deduction, if any alimony or child support is owing. If no alimony or child support is owing, the penalty shall be paid to the obligor. An employee may bring a civil action in the courts of this state against an employer who refuses to employ, discharges, or otherwise disciplines an employee because of an income deduction order. The employee is entitled to reinstatement and all wages and benefits lost plus reasonable attorney’s fees and costs incurred.

Other State Laws: If the states provide for a lesser amount to be garnished, or provide protection for garnishment of more than one debt, the state laws apply. That means employers need to be aware of the protections their state applies to employees. Some states provide protections against discharge for a child support garnishment, regardless of whether or not there were prior garnishments for other debts. Here’s a list of some state laws on garnishment.

Yes, dealing with an employee’s wage garnishment is a pain. But if you fire them just because you don’t like being inconvenienced, you can end up going to jail over it (and still have them back as an employee). 

If you were fired right after a garnishment, contact an employee-side lawyer in your state to find out about your rights.

Friday, June 21, 2019

Is the Florida Noncompete Statute Unconstitutional? Probably

In light of the infamous Supreme Court decision of Burwell v. Hobby Lobby Stores, Inc., most corporations are "persons" under the U.S. Constitution. Regarding the noncompete statute, corporations should thus be treated as a “person” for purposes of constitutional analysis. 

If corporate people have equal rights with those of individuals for purposes of free speech and religious liberty, so do human people have equal rights with corporate persons for purposes of equal protection under the law.

Thus, the Florida noncompete statute, Fla. Stat. § 542.335, likely violates the Equal Protection Clause of the U.S. Constitution and the Florida Constitution (Article I Sec. 2) in that it prohibits the court from considering undue hardship on employees, but allows consideration of hardship on employers.

In most noncompete lawsuits, employees have been classified from their former employers separately based on a difference, that is, former employee and former employer, which has no reasonable relationship to the ban on considering undue hardship for one side only. If the Florida legislature wants to protect trade secrets, it has already done so through a separate statute. This entire statute treats employees and employers arbitrarily and differently with no rational basis.

If the employees in noncompete litigation were corporations instead of individuals and entered into an agreement limiting their ability to compete or poach customers, there is no doubt they would be prosecuted for antitrust violations.

This statute creates an imbalance by considering only hardship on the employer with no ability to use equity to balance the hardships to the individual human employees.

Furthermore, the provision of the statute prohibiting the courts from balancing the equities likely violates the Florida Constitutional provision governing access to the courts, Article I Sec. 21. That provision protects rights that existed at common law. In Florida, the common law was that noncompete agreements were not allowed. By imposing the arbitrary one-sided balancing and limiting the Court’s ability to balance hardships, the legislature has limited Defendants’ access to the courts.

The statute also likely violates the separation of powers clauses of the Florida Constitution, Article II Section 3 and Article V Section 1 by interfering with the Court’s powers in equity. By prohibiting the Court from considering all factors in equity, including undue hardship, the legislature has interfered with the Court’s powers.

In short, there are several constitutional problems with Florida's unbalanced and biased noncompete statute. Hopefully, the courts will recognize this imbalance and address the constitutional defects in the statute one of these days.

Friday, June 14, 2019

Can I Be Fired For Taking Vacation? Short Answer: Yes

I'm on vacation, and so are many Americans. You shouldn’t have to worry about your job while you’re on vacation. Or should you?

You’ve earned two weeks of vacation, and wow, did you work for it. You put in for your two weeks, got it approved, and planned your trip. You have non-refundable tickets to fly to your dream all-inclusive resort. A week before you leave, you mention that Bob will be covering for you while you’re gone. Your boss says, “Oh, you were serious about taking vacation?” You nod, meekly. You ask a coworker what she thinks he meant. You find out that the last five people who went on vacation were fired.

Should you be worried? The short answer is: yes. There is no U.S. law requiring an employer give you any paid or unpaid vacation. I hear stories all the time of people fired a few days or a week into a scheduled vacation, or the day they get back. Even worse, they’re fired the day before they’re scheduled to leave. They were counting on the vacation pay to cover the cost of the trip. Now they’re left in the lurch.

Vacations are good for you and good for employers. They keep morale higher, prevent employee burnout, reduce stress, and keep you healthier. The good news is that most employers won’t fire you for taking your vacation. Yet a recent survey found that one out of four of Americans are taking no vacation this summer.

The fear of being fired for taking vacation is justified. If you live anywhere but Montana, you’re probably an at-will employee. That means you can be fired for any reason or no reason at all. Do you have any rights? Yes, but not many.

Here are some circumstances where it would be illegal to fire you for taking a vacation:

Family and Medical Leave: If you have scheduled surgery, are pregnant with a due date, or have an immediate family member who has scheduled medical care, you might be protected. If you put in for FMLA leave, your employer must let you use your paid sick and vacation time first before they put you on unpaid leave. If you’re fired because you used your vacation for FMLA leave, you may be protected.

Contract: If your employment contract says you’re entitled to vacation, then firing you for taking it might be breach of contract.

Employee Welfare Plan: If the employer has an established vacation policy for all employees, then it might be an “employee welfare benefit plan” that is covered under ERISA. That means it might be illegal to retaliate against you for exercising your right to take your vacation benefit.

Union contract: If your union’s collective bargaining agreement provides for your vacation benefits, you might be able to grieve any termination that violates your union contract. If you don't have a union at work, look into forming one if you are concerned about your working conditions.

Discrimination: The company can’t discriminate based on race, age, sex, religion, color, national origin, disability, genetic information, or age in granting and denying vacations. Some states have other protected categories such as sexual orientation, marital status, and domestic violence victims. They can favor your boss’s vacation over yours though. If the boss’s vacation conflicts with yours, even if yours was preapproved, they can renege on the approval.

Other than these limited rights, you can absolutely be fired for taking your vacation or to prevent you from getting a paid vacation. Here’s some more information you need to know about your rights while taking vacation:

Wrongdoing discovered: If your employer discovers wrongdoing or even poor performance while you’re on vacation, even if you have a protected right to take it, they can fire you for the wrongdoing they discover. That means if you embezzled and they find out because someone covered for you while you were out, or if you didn’t do a key assignment before you left, then you might not have a job to come back to.

Layoff: Even if you have protected vacation rights, such as under a union or employment contract, if there is a genuine layoff at your company, they can probably include you in the layoff.

Last minute demand to cancel: Sometimes the boss will demand you cancel your plans at the last minute. Maybe an emergency comes up, or she just decides she can’t live without you. If you refuse and take your vacation anyhow, you can be fired for insubordination or job abandonment.

Use it or lose it: If your employer has a “use it or lose it” vacation policy, you probably have no right to be paid for your vacation when you’re fired. However, if your employer lets people accrue their benefits and get paid out when they leave, you are probably entitled to be paid your vacation time when you leave. It’s an earned benefit. Some states protect their citizens by barring use-it-or-lose-it vacation policies. Here are some states that look out for their voters:
  • California: Under Cal. Labor Code §227.3, all accrued vacation must be paid when employment ends. California also prohibits policies that make employees take vacation by a certain date or lose it. In one California case, an illegal policy cost the employer millions.
  • Illinois: Under 820 ILCS 115/5; 56 Ill. Adm. Code 300.520, employers have to pay out accrued vacation pay at the end of employment unless a collective bargaining agreement with a union provides otherwise. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. 56 Ill. Adm. Code 300.520(e).
  • Indiana: While employers can have a use-it-or-lose-it policy in Indiana, employers have to pay out accrued vacation if their vacation policy is silent on the issue. See Indiana Heart Associates, P.C. v. Bahamonde, 714 N.E.2d 309 (Ind. App. 1999); Die &Mold, Inc. v. Western, 448 N.E.2d 44 (Ind. App. 1983).
  • Louisiana: Vacation pay is earned wages, so policies requiring the forfeiture of earned vacation pay are not enforceable. Beard v. Summit Institute, 707 So.2d 1233 (La. 1998). However, they may implement use-it-or-lose-it policies saying employees must use by a certain date or lose the vacation.
  • Maryland: Like Indiana and Louisiana, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.
  • Massachusetts: Employers have to pay out accrued vacation pay at the end of employment. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. MA Atty. Gen. Advisory 99/1.
  • Michigan: Similar to Indiana, Louisiana and Maryland, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.
  • Montana: In Montana, an employer can't take away earned vacation pay or fail to pay it out for any reason. MT Dept. of Labor and Industry FAQ; See Langager v. Crazy Creek Products, Inc., 287 Mont. 445; 954 P.2d 1169 (Mt. Sup. Ct. 1998).
  • Nebraska: Nebraska law prohibits employers from failing to pay out earned vacation or from policies saying employees must use vacation by a certain date or lose it. See Neb. Rev. Stat. § 48-1229(4); Roseland v. Strategic Staff Management, Inc., 272 Neb. 434, 722 N.W.2d 499 (Neb. Sup. Ct. 2006); Neb. Dept. of Labor FAQ.
  • New York: If the policy is silent on the issue vacation must be paid out at the end of employment.
  • North Carolina: If the policy is silent on the issue, vacation must be paid out at the end of employment. N.C. Gen. Stat. § 95-25.12.
  • North Dakota: Employers can't require an employee to forfeit accrued or earned vacation leave upon separation from employment, regardless of the reason. ND Admin. Code § 46-02-07-02(12). However, they can implement policies saying vacation must be used by a certain date or be lost.
  • Ohio: While use-it-or-lose-it policies are allowed, vacation must be paid out at the end of employment if the policy is silent on the matter. See Fridrich v. Seuffert Construction Co., 2006 Ohio 1076 (OH App. 2006).
  • Oregon: Oregon is another state that allows such policies but requires employers to pay out vacation if the policy is silent on the issue.
  • Rhode Island: Employers must pay employees who have completed at least one year of service for any vacation pay accrued in accordance with company policy or contract on the next regular payday for the employee when they leave. RI Stat. § 28-14-4(b).
  • West Virginia: If the policy is silent on the matter, vacation has to be paid out at the end of employment. See Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (WV Sup. Ct. 1999). Otherwise, employers are allowed to implement such policies.
  • Wyoming: In Wyoming, an employer cannot require an employee to forfeit accrued or earned vacation on leaving. WY Dept. of Employment FAQs.
Should it be legal to fire you for taking your earned vacation? No. But it probably is. The United States is the only industrialized nation that doesn’t have a law requiring paid vacation. One in four Americans receives no paid vacation.

So take that trip to South America or your dream cruise. Enjoy! You may have more free time than you expected when you get back. Maybe it's time we join the rest of the civilized world and require some paid leave for workers. Something to think about when you're voting in 2020.

And now, back to my vacation, which I am definitely taking as much of as I can.

Friday, June 7, 2019

Can My Employer Make Me Speak English Only, Even On Breaks?

I'm always surprised how many employers try to impose English-only policies or ban speaking a particular language when there are so few circumstances where such a policy would be legal. Most English-only policies at work violate the laws against national origin discrimination. Yet some companies like Albertsons and Forever 21 have ended up in hot water for banning the use of any language other than English. In the case of Albertsons, EEOC sued them for limiting language to English even during breaks. 

Banning the use of another language on breaks is almost certainly a blatant violation of the law.

Here's what the United States Equal Employment Opportunity Commission (EEOC) says about English-only policies:
The EEOC has stated that rules requiring employees to speak only English in the workplace violate the law unless the employer can show that they are justified by business necessity.
  • A rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, will rarely be justified.
  • An English-only rule should be limited to the circumstances in which it is needed for the employer to operate safely or efficiently.
  • Circumstances in which an English-only rule may be justified include: communications with customers or coworkers who only speak English; emergencies or other situations in which workers must speak a common language to promote safety; cooperative work assignments in which the English-only rule is needed to promote efficiency.
  • Even if there is a need for an English-only rule, an employer may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of violating it.
Some examples of how this would work would be having a rule that, in case of a workplace emergency, English only will be spoken so all employees can understand; a rule that employees may not use a non-English language to make derogatory statements about coworkers or in order to exclude coworkers; or a rule that no foreign language will be spoken in the presence of English-only speaking customers.

If your boss wants to ban a foreign language at work for none of the reasons that are allowed under discrimination laws, they may be breaking the law. It could well be considered national origin discrimination.

If your boss has an English-only policy that is not justified by business necessity, I suggest contacting HR to report this national origin discrimination. Report it in writing so you have proof of what you reported. Call it "Formal Complaint Of National Origin Discrimination," and explain the new prohibition against speaking another language. If they won't correct the situation or if they retaliate, you should either file a Charge of Discrimination with EEOC or contact an employment lawyer in your state to discuss your rights.

Friday, May 24, 2019

Is It Time To Terminate At-Will Employment Laws?

Montana remains the only state in the nation that does not have at-will employment. At-will means you can be fired for any reason or no reason at all. Boss in a bad mood? That's a firing? Doesn't like your shirt? You're outta there.  Sure, there are exceptions like discrimination and whistleblower laws, but otherwise you're at the mercy of your boss.

So why haven't American workers risen up and said it's time to terminate at-will employment?

Well, maybe they're finally starting to, thanks to SEIU. In February, New York City saw a proposed just-cause bill introduced to protect fast-food workers at the behest of SEIU. Philadelphia passed a just-cause ordinance to protect parking industry workers last week, also at the urging of SEIU.

Montana, unlike every other state, requires employers to have just cause before they fire workers. And isn't that fair? Your family's ability to buy food and pay for shelter depends on your job. Most Americans are $400 of unexpected expenses or lost wages away from financial meltdown. Montana has had this law since 1987, and businesses are still there, the economy still functions and the state hasn't exploded, despite dire warnings from naysayers to the contrary.

Under Montana's Wrongful Discharge from Employment Act, MCA 39-2-901:
(1) A discharge is wrongful only if:
(a) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy;
(b) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or
(c) the employer violated the express provisions of its own written personnel policy.
(2) (a) During a probationary period of employment, the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason.
(b) If an employer does not establish a specific probationary period or provide that there is no probationary period prior to or at the time of hire, there is a probationary period of 6 months from the date of hire.
Pretty reasonable, huh? If New York and Philadelphia get the ball rolling, maybe other cities and states will follow. American workers deserve to have some stability and a regular income as long as they do their jobs.

Let's finally give notice that we're going to terminate at-will employment laws.

Friday, May 17, 2019

Is Your Offer Letter A Contract? Of Course It Is

I see offer letters that make a specific job offer and then say, by the way, this isn't a contract. Guess what? Offer plus acceptance equals contract. I don't care what that disclaimer says, it's still a contract.

Now, what the contract means is another thing. It may say you're at-will, which means they can fire you for any reason or no reason at all. Some states have exceptions to the at-will doctrine. In all states, at-will still doesn't affect your rights under discrimination and whistleblower laws.

Your offer letter probably has your starting position and salary listed. That means the employer is bound by this once you accept. If you're at-will, they can change it, but luring you in with a promise of a management position and high pay and then making you a minimum wage janitor is not only a breach of contract, but is likely fraud.

The offer letter probably also lists benefits and other terms. You are bound by the terms, as is your employer.

Of course, if you sign a more detailed agreement when you start, then the offer letter may be no longer in effect. Most contracts say they supersede all prior contracts. Be careful to read what you sign, especially that giant pile of papers they give you when you start. Don't sign something you can't live with.

If it turns out that the employer had no intention of living up to its deal when it made the offer, such as offering a nonexistent job or benefits, then you could have fraud claims along with your breach of contract claims.

So make sure to keep a copy of that job offer. If it's an email, print it and keep it. Keep anything you sign. It may be a contract, and it might come in handy later. It might also contain post-employment obligations you have to comply with such as a noncompete agreement.

If there's something you don't understand in the offer, make sure you get clarification before you accept. Offer plus acceptance equals contract. If the company is bound, so are you. Pay attention to what you are agreeing. If you don't understand it, get legal advice from an employee-side employment lawyer before you accept.

Friday, April 26, 2019

It's Illegal For Employers To Demand You Buy From Them, Or To Not Buy From A Competitor

For some reason, lately I'm running into employers that are firing employees because they are doing business with a competitor or a merchant they don't like. In Florida, and I'm guessing in some other states, this is flatly illegal.

An employer in Florida cannot demand that an employee buy from them or deal with them. Nor can an employer demand an employee not do business with any other company.

Fla. Stat. Sec. 448.03 provides: 
Threat of discharge to compel employee to trade with any particular firm or person; penalty.—Any person or persons, firm, joint stock company, association or corporation organized, chartered or incorporated by and under the laws of this state, either as owner or lessee, having persons in their service as employees, who shall discharge any employee or threaten to discharge any employee in their service for trading or dealing, or for not trading or dealing as a customer or patron with any particular merchant or other person or class of persons in any business calling, or shall notify any employee either by general or special notice, directly or indirectly, secretly or openly given, not to trade or deal as a customer or patron with any particular merchant or person or class of persons in any business or calling, under penalty of being discharged from the service of such person, firm, joint stock company, corporation or association shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
The law provides criminal penalties for officers and agents who violate:
448.04 Penalty for officer or agent violating s. 448.03.—Any person acting as an officer or agent of any firm, joint stock company, association or corporation of the kind and character as described in s. 448.03 or for any one of them, who makes or executes any notice, order or threat of the kind therein mentioned and forbidden, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
In 33 years of law practice, I'd never seen this as an issue before. Now I've seen it twice in a few weeks. So this is my reminder that violating this law is a crime in Florida. Please cut it out.

Friday, April 12, 2019

“BE HEARD in the Workplace” Act Attempts To Fix Sexual Harassment/Discrimination Laws

Don't get too excited. It will probably pass in the House, fail in the Senate, and be vetoed even if it does pass. But still, the “BE HEARD in the Workplace” Act (short for “Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act”) just introduced would be a major step in the right direction on sexual harassment law.

The bill would fix some major issues with existing sexual harassment laws that I've been complaining about for years:

Intern sexual harassment would be illegal: Right now, there is not a single federal law making sexual harassment of unpaid interns illegal. They aren't employees, so Title VII doesn't protect them. New York City, along with Washington, D.C., Delaware, and Oregon, have laws against sexually harassing unpaid interns. Otherwise, interns are currently sitting ducks in the workplace. The law also extends protections to  independent contractors, interns, fellows, volunteers, and trainees, regardless of remuneration or academic credit, and employees of smaller companies (right now it's 15 or more employees, so small employers get a free pass unless there's a state or local law saying otherwise).

Protection for LGBTQ employees: This law would add gender identity and sexual orientation to Title VII protections, clearing up any doubts about whether Title VII currently protects these employees (which I think it already does based on Obergefell).

Damages fixed: While age discrimination cases are currently subject to different damages and all damages are capped, this would eliminate damage caps and eliminate the ageist bias in the current law.

Fixes sexual harassment standard: The law would eliminate the ridiculously difficult-to-prove "severe or pervasive" standard (which management-side lawyers and some courts say is severe AND pervasive), clarify that sexual harassment is a form of workplace harassment, define workplace harassment as a practice that unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment, and identify factors to be used to determine whether a practice constitutes workplace harassment, but also clarify that no single factor alone can determine whether a practice constitutes workplace harassment.

Fixes standard of proof: The law clarifies that employees must only prove that discrimination or retaliation was a motiving factor under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Nondiscrimination Act (right now courts have said that age must be the sole factor in age discrimination cases, and for all it must be both a substantial and a motivating factor).

Statute of limitations: Changes the statute from 180/300 days (depending on the state, which is silly) to file with EEOC to 4 years.

No mandatory arbitration: The law prohibits pre-dispute mandatory arbitration agreements, and creates guardrails for post-dispute arbitration agreements.

Contractor discrimination prohibited: The law reinstates the Obama ExecutiveOrder reversed by Trump that ensures federal contractor compliance with workers’ rights laws, including maintaining workplaces free from harassment and discrimination. 

These are just a few of the key provisions. It's basically my wish list for fixing employment law, so thanks to the bill's sponsors Senator Patty Murray, Congresswoman Katherine Clark, and Congresswoman Ayanna Pressley.

Now, if only it had a chance in he** . . .


Friday, April 5, 2019

Did Your Employer Misrepresent Your Job Or Withhold Vital Information? That May Be Fraud

It’s not unusual that people are duped into giving notice at their job, only to have the offer pulled or find out the job is nonexistent. Some folks get lured into a job with promises of higher pay, better title, specific hours or location, and it turns out that the representations made to lure them in weren’t true. If this happens, you might have a case for fraud.

There are two types of fraud that Florida courts recognize in these situations. The first is a false statement made, knowing it is false, intending that you rely on it. A good example is what happened in Gandy v. Trans World Computer Tech, 787 So. 2d 116 (Fla. 2d DCA 2001). There, an employee alleged that he was induced to terminate his lucrative business as a freelance consultant with the promise of long-term employment as a manager. The employee alleged that, when the offer was made, the company had no intention of keeping him as a long-term employee but rather intended to force him to quit after a division was created. These allegations withstood a motion to dismiss.

So if you leave your job based on an offer that you'll be the manager, only to find out you're the janitor or secretary, said you'd be paid $100K/year and then paid much less, or if you find out you were only hired to be a temp to fill in for someone out on disability or maternity leave, you might have a fraud case. You may also have a breach of contract case, but that's another post for another day.

The other type of fraud is fraudulent concealment, basically, failure to disclose information that the employer has that would have made you decline the offer. A good example is what happened in Telesphere International, Inc. v. Scollin, 489 So. 2d 1152 (Fla. 3rd DCA 1986), where the employer, through a principal, had fraudulently induced an employee to join the company by deliberately failing to inform him that the system he was hired to market would fail and he would be discharged. The appellate court found that the plaintiff had pled the elements of actionable fraudulent concealment: the defendant deliberately and in order to deceive withheld material facts from plaintiff, when there was a duty to disclose, where the party making the representation had superior knowledge in the matter or acted in a confidential or fiduciary capacity, when plaintiff relied on the lack of disclosure to his detriment.

These are just some examples of what would be fraud. I cited Florida cases, but the claims are likely similar in other states as well. So if your employer misrepresented the job or the pay, or withheld vital information, you might have a remedy.

Friday, March 29, 2019

Marco Rubio Introduces Anti-Noncompete Bill In Congress

In a possible sign of the apocalypse, I actually agree with something my state's Senator, Sen. Marco Rubio, has done. I'm stunned but pleasantly surprised that he has introduced something to help working people, despite being the senator for very anti-employee Florida.

Senator Rubio has introduced the Freedom To Compete Act, a bill that would prohibit employers from forcing exempt workers from entering into noncompete agreements. That means no hourly employees would be required to sign terrible agreements prohibiting them from switching jobs for higher wages and better working conditions. No more noncompete agreements for sandwich makers.

The bill, which you can read in its entirety here, has some interesting features:

  • It's an amendment to the Fair Labor Standards Act.
  • It voids all noncompete agreements for non-exempt employees and prohibits employers from entering into, extending or renewing noncompete agreements.
  • The only employees it does not apply to are "any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman."
  • No jail time for violations, but "legal and equitable relief."
  • The Department of Labor can enforce.

It doesn't have any penalties for violations, so employees would have to show damages. Plus most employers just send the nasty-gram to new or potential employers and threaten to sue them, their mother and their dog unless they fire the employee, so the employee is fighting from the position of being unemployed. Most employees can't afford to fight noncompetes. This might help some if they can actually get DOL to assist with enforcement.

Is it perfect? No. Is it a good start? Heck yeah.

Since it was introduced by a Republican, I'd give it slightly better than a snowball's chance of passing. Other attempts by Democrats have failed miserably, so it's good to see something happening on the other side to curtail abusive noncompetes. One Democratic attempt last year would have banned almost all noncompetes. Al Franken's bill after the sandwich noncompete scandal would have banned noncompetes for employees making $15/hour or less and require employers to disclose that noncompetes would be required as a condition of taking a job. This one would actually help more employees than Sen. Franken's bill, so yay.

If you think a Republican doing something pro-employee is a good thing, call and write your senators to ask them to support Sen. Rubio's bill, and tell @marcorubio thanks. Let's encourage pro-employee behavior!

Props to my Senator, Sen. Marco Rubio, for trying to help U.S. working people!


Friday, March 22, 2019

Cities Step Up Worker Protections - Has Yours?


The United States is way behind most other western nations in protecting its workers. While Congress has dropped into paralysis, U.S. cities have stepped in where Congress and the states have failed to protect working Americans. Florida is one of the most anti-employee states in the nation. The cities here could do much to help working people if they had the political will.

Here are some examples of how cities are stepping up to help workers:

Intern sexual harassment: New York City, along with Washington, D.C., Delaware, and Oregon, have laws against sexually harassing unpaid interns. There is not a single federal law banning intern sexual harassment. Title VII doesn’t cover it because they aren’t “employees.” Same with most state laws including Florida. So, yay for sexual harassers. High school and college students are fair game.

Paid sick leave: San Francisco, Oakland, Emeryville, Los Angeles, Berkeley and San Diego; Washington, D.C.; New York City; Seattle, Tacoma and Spokane; Philadelphia; Montgomery County (Md.); Chicago and Cook County; St. Paul, Minneapolis and Duluth); Newark, Jersey City, Irvington, Passaic, East Orange, Paterson, Trenton, Montclair, Bloomfield, New Brunswick, Elizabeth, Plainfield and Morristown; and Austin all have some form of paid sick leave. Eleven states including California provide some form of paid sick leave. Not Florida, of course.

Paid safe days: The cities that provide paid "safe" days, giving time for survivors of domestic violence, sexual assault, and stalking to seek services include: San Francisco, Emeryville, San Diego, Los Angeles, Berkeley and Santa Monica; Washington, D.C.; Seattle, Tacoma and Spokane; Philadelphia; Montgomery County (Md.); Chicago and Cook County; Minneapolis, St. Paul and Duluth; New Brunswick; and Austin.

Salary history: 13 states and 11 cities have banned employers from asking about 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.”

Ban the box:  33 states and over 150 cities and counties have adopted “ban the box” laws. These laws generally prevent employers from asking about applicant arrests or convictions at the beginning of the application process, and only allow inquiries after the applicant passes their initial screening. Why? Because about 70 million Americans have some criminal record, and the majority of them are minorities. An entire class of citizens has been made almost completely unemployable due to criminal records that have nothing to do with their ability to do jobs.

Predictable schedules: San Francisco, Emeryville, San Jose, Chicago, New York, Seattle and Washington, D.C. have ordinances requiring that employers give specified advance notice of work schedules, advance notice of shift cancellations, and/or predictability pay for last minute cancellations. Oregon is the first state to enact such a law.

Paid family leave: 35 cities/counties and 11 states have paid parental leave laws.

Right to vacation: New York City would require most employers to offer 10 days of paid vacation to employees under this proposed ordinance

Firing for just cause: This proposed law would prevent employers in New York from firing on a whim.

Minimum wage: Florida’s legislature has prohibited local ordinances raising minimum wage, and that was just upheld. Sad. Many other cities around the nation have raised minimum wage for their workers.

Some cities that have led the way on employee rights are San Francisco, New York, A list of San Francisco’s very pro-employee ordinances is here. New York’s employee rights page is here.

So talk to your local elected officials about stepping up to help working people. If the state and federal governments won’t help workers, it will be up to the cities to protect them.

Friday, March 15, 2019

9 Ways A DUI Can Destroy Or Damage Your Career

I saw at least six stories last month about people being fired for having a DUI. See here here here here here and here. Oddly, the majority were police officers, who should know better. If you are arrested for a DUI, the consequences go way beyond possible jail time. You may not be aware that a DUI can have a devastating impact on your job.

Here are 9 ways a DUI can destroy or damage your career:

  • Suspended license: If your license is suspended and you don't get an exemption for driving to/from work (many states allow this exemption under certain circumstances) then you're taking an Uber, a taxi, hiring a private driver, or taking the bus to and from work. Taking the bus is pretty unreliable and you can end up losing your job due to lateness. Plus, if your job requires you to drive, you're out of luck.
  • Mandatory firing policy: Many employers provide in handbooks and employment contracts that conviction of a crime is grounds for firing. If your employer has that policy, you may lose your job. Employers who have this policy usually require you to notify them immediately upon an arrest.
  • Insurance loss: If your job requires you to drive, and if you manage to keep your license, your insurance company may not insure people with DUIs. If you are covered by company insurance for driving a vehicle or heavy equipment, your employer may lose coverage if they keep you employed. Your employer may have no choice but to fire you. Even if you manage to be covered, your insurance, and your employer's, will be more expensive. Your employer may not want to pay extra to keep you.
  • Diversion program: If you're lucky enough to qualify for a diversion program that lets you avoid jail time, there could still be mandatory notification of your employer and even required visits to you at work. If you can show that your handbook provides that conviction of a crime is grounds for firing, then some states may waive this requirement. However, some states require a guilty plea for entry into a diversion program, and if your employer finds out you've been convicted, you'll likely lose your job.
  • Professional license: Many professional licenses, such as for lawyers, nurses, doctors and even plumbers require that any arrest be disclosed to the licensing agency. Depending on your state and the agency, it could affect your license. Lose your license, lose your job.
  • Missed work: You'll miss work for court appearances and possibly for mandatory alcohol treatment. There could be mandatory imprisonment. You could get hit with excessive absenteeism. Plus, there's the embarrassment of explaining why you have to be out.
  • Job applications: While some states don't allow employers to ask about arrests and convictions on job applications, most do. Plus, your DUI will appear in public records and on your driver's license records. And that mug shot won't be pretty
  • Education: Many colleges and universities ask if you have any criminal convictions. Similarly financial aid applications may be affected by a DUI. You may have to prove you've gone through a treatment program, or may lose out altogether.
  • Commercial driver's license: A DUI will show up on your commercial driving record for 55 years. If you're a commercial driver, your career is possibly at an end.

So, what do you do if you're pulled over and you've had a few? I'm an employment lawyer, not a criminal defense lawyer, but based on my research here are some pieces of advice that seem to be universal:

  1. Stay calm: Police are looking to see if you are agitated, nervous or belligerent. Be polite and calm at all times. Pull over to a safe spot. They are watching how you pull over.
  2. Open your window: It may be cold (or hot) out, but you need to clear the alcohol fumes. Plus, you will need to speak with the officer. Do it as quickly as you can. I've heard of people refusing to open the window beyond a crack to pass the license and registration. I don't have any idea if this actually works or just ticks off the police officer even more.
  3. Get your license and registration ready: You don't want them to see you fumbling or dropping things.
  4. Speak as little as possible: Look at them but point your mouth away from the officer's face. If you are asked where you are coming from, if you've been drinking or how much you've had to drink, don't answer. Say, politely, something like, "I have nothing to say." If you say any more, you may slur your words, and they will smell your breath. If you admit you had dinner with friends, came from a bar or club, or were drinking even one drink, that evidence can and will be used against you.
  5. Refuse the field sobriety test: You don't have to submit to the field tests they give, like walking in a straight line, touching your nose, etc. They don't have to tell you that you can refuse. You can. Refuse. They're subjective and even sober people can fail.
  6. Portable Breathalyzer: The advice I've found on taking the portable Breathalyzer is mixed. The majority seem to be against it, but you'll be taken to the station if you refuse. If you decline, you might say something like, "I'd prefer to go to the station to be tested."
  7. Blood versus breath: I've also seen mixed advice on choosing the blood test versus the Breathalyzer, if your state allows the choice (and you may have to ask if you have the choice). The blood tests are more accurate but samples can be retested. Breathalyzer results may be more easily challenged, but also give more false positives. In most states, refusing to be chemically tested is a crime in itself, so you may not want to refuse.
  8. Ask to be videotaped: If you really aren't impaired, ask the officer if they have a video camera and if it is turned on. If it is off, ask them politely to turn it on. If you're impaired, you're probably better off not being on tape.
I'd love to hear from criminal defense attorneys in the comments as to your best advice for people stopped after drinking.

The best advice is to not drink and drive. If you have been drinking at all, call Uber, call a taxi, take a bus or order a car service. AAA offers a "tipsy tow" or "tow-to-go" service in certain states for big holidays and events like New Year's and the Superbowl. The National Highway and Transportation Safety Administration has an app to help you call for a ride. AAA has published a list of sober ride services by state. Put the service of choice on your contacts list and call them if you've been drinking.

If you are arrested for a DUI, contact a criminal defense attorney right away. Then you might want to talk to an employment lawyer in your state about how it will affect your job.

Friday, March 8, 2019

I'm Being Fired! What Do I Do Now?

You're called into a meeting with HR and your boss. You know the axe is falling. Here some do’s and don’ts to consider if you are called into a meeting and fired:

DO'S 

1. Do work as long as you can.

If they are giving you the option to work for a few more weeks or months, do say yes. It's way easier to get a job when you have a job. Take that time to send out resumes and pound the pavement. Just make sure you still do your job while you're there, and don't start copying trade secrets or confidential information. That will just get you into trouble.

2. Do ask about getting your personal items. 

Many people leave their belongings behind. Security or HR might have to accompany you, but do get your stuff. They aren't allowed to keep your belongings. On the other hand, if it's in your work computer, your company phone, a company notebook, or something else they own, it's theirs. They don't have to let you print or copy anything that's in their property.

If it's important, keep it in your briefcase, your purse, or at home so that this doesn't happen. If you've, for instance, been keeping a log of every sexually harassing comment that was made, you may lose it now. That's why you never keep it on your work computer.

3. Do ask about your insurance. 
Are they cutting off your insurance that day, at the end of the month, or later? If you have an upcoming doctor's appointment or surgery, you need to know ahead of time whether or not you'll be listed as covered.

If coverage is getting cut off, it will be reinstated retroactively once you elect COBRA and make your payment. If you paid your share of insurance through the end of the month, remind them. They may extend your insurance at least through the time you've paid, or refund you the difference.

4. If no severance is offered, do ask about it. 
They may offer it if you ask. Don't agree to or ask for any amount on the spot (you're not thinking straight, remember?) You might want to talk to us to see if you have potential claims against them before you decide on an amount. If they do offer severance, ask them to put it in writing. Get legal advice before you agree to anything you don't understand.

5. Do ask if the company has a severance plan or policy.

You'd be surprised how many have written severance plans that don't require a release, yet they try to get you to sign one anyhow. Or they try to throw in a noncompete agreement that's not required.

If you're already entitled to severance without signing anything, then maybe you can negotiate more in exchange for a release or noncompete agreement.

6. Do ask when you'll get your final check.

Some counties and states have deadlines for employers to pay, some do not. Don't assume you'll be paid in the next pay period.

Also, if you're owed commissions, find out if they intend to pay them. If there are deals you've made that are in the pipeline, they may owe you money once they close.

7. Do ask why you're being terminated. 

Here in Florida they don't have to give a reason, but in some states they do. However, if they refuse to give you a reason, or give you a different reason than they give to unemployment or the EEOC, that may help you with your legal claims down the road.

8. If they claim you signed a noncompete or confidentiality agreement, do ask for a copy.

You need to understand what you signed. Many employers don't provide copies when you sign these agreements at the beginning of your employment. But if they want you to comply, they have to give you a copy so you understand your restrictions.

If they won't give a copy, or if you think your agreement might not be enforceable, contact an employee-side employment lawyer to review your options with you.

9. Do ask what co-workers and potential employers will be told.

It's important to know what to say to potential employers. It's also important to make sure the company rumor mill isn't fed with misinformation. Get on the same page with them if you can.

10. If they ask you to resign, say no. 

Unless you're being offered substantial dollars in exchange for a forced resignation, what's your upside? You'll probably be disqualified from getting unemployment. You may accidentally give up some discrimination, whistleblower or other claims.

Some people think it looks better to potential employers to say you resigned, but really, who do you think you're fooling? In this economy, almost nobody resigns without having another job lined up. They'll know something bad happened, so why make it easier on the former employer by quitting?


DON'TS 

1. Don't sign anything. 
You aren't thinking straight. When they shove a severance agreement, disciplinary report or other paperwork in front of you, take a deep breath, and ask for a copy to review. Take a look at it once you've had a chance to calm down.

If there's anything you don't understand, take it to a lawyer to have it reviewed before you sign. You may be giving up rights you shouldn't, or maybe you have some leverage to negotiate for more money.

You especially don't want to accidentally sign a noncompete agreement that limits your ability to work for a year or two, unless you understand it and are getting some substantial dollars for it.

2. Don't yell, curse or make a scene. 
You don't want to burn bridges. You still need these people, as much as you hate them right now. They will be on your resume for many years. They'll have to give references on you.

Plus, if you tick them off they're more likely to challenge your unemployment. They can make your life even more miserable right now, believe it or not. I've known many employees who were fired or laid off and who ended up getting rehired down the road.

3. If you believe they got it wrong, don't argue or beg. 
If they got the wrong person or there's something you can prove is incorrect, you can tell them calmly. However, very few employers will change their minds at this point.

If your proof is at home or is something you need to provide in writing, then wait until you've cooled off, put together your information in a business-like fashion, and send it later.

They may have an appeals or grievance process. Follow it.

4. Don't admit to a crime or wrongdoing.

Sometimes, the employer will lock you in a room with Loss Prevention and say you can't leave unless you sign something admitting that you stole inventory or did something wrong. Don't do it. You're already going to be fired -- don't let them fool you. "Just sign and you'll still have your job," they might say. They're lying. The only question is whether you'll also end up in jail or with a big judgment against you.

If they say you can't leave, open the door and go anyhow. If they block the way, pull out your cell phone or pick up the phone in the room and call 911. If you don't have a phone and they block your way, demand to be allowed out. If they still won't let you go, scream at the top of your lungs for help. That's the one time I recommend making a scene. (Don't touch anyone though). Eventually you will be allowed out of the room. Call 911 the second you leave the premises and tell the police what happened. Then call us (or a criminal defense attorney if you need one) and get advice.

But whatever you do, don't sign something admitting to a crime. Ever.

5. Don't demand to say goodbye. 

You don't have the right to have a big farewell scene with co-workers. You're upset and will probably embarrass yourself. If co-workers approach you right after you've been fired, stay calm. Don't badmouth the company or the boss. Leave with class and you may keep the doors open to come back someday.


While being fired is right up there with a death in the family as one of the most stressful things that can happen to you, with lots of self-control and a little preparation, you may help ease your transition a bit. If you do have any potential claims against the company, you hopefully won't have done anything to damage your case. More importantly, you won't have burned any bridges.