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!

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.

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.

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.

I Think I'm About To Be Fired! What Do I Do?

With layoffs happening in droves right now, many people are wondering what to do if the axe falls. While this is a stressful time, it’s also an opportunity to prepare. Here are some things to think about if you are about to be fired or laid off:

• Potential claims: If you think you’re being singled out due to race, age, sex or national origin, start writing down the ways you believe you’ve been treated differently. If you are objecting to or refusing to participate in something illegal, make sure you document it. A discrimination or whistleblower claim might give you leverage to negotiate a better severance package. Now might be a good time to have a strategy session with an employee-side employment lawyer about how to document your case.
• Look for a job: No matter why you may lose your job, polish your resume. It's way easier to get a job if you have a job. Don't procrastinate.
• Signing termination papers and severance agreements: If your employer hands you a resignation or termination paper to sign and you’re not getting any severance, take a pass. If you will receive severance, be careful before signing an agreement. You may wind up agreeing to something costing you more than the amount of your severance, such as a requirement to turn down a job offer from a competitor. If the employer wants you to sign a non-compete clause and the restriction is longer than the number of weeks of severance, it’s probably not worth signing unless you’re going into an entirely new field. If you don’t understand everything in your severance agreement, have a lawyer review it with you to discuss claims you may have that could be potential leverage that you have that might get you a better package, and any changes to the agreement language that are necessary. 
• Exit interviews: Some companies say you’ll need to give an exit interview after you’ve been fired. That’s because firms use exit interviews to cover themselves in case departing employees later claim discrimination or something illegal. Here’s the truth about an exit interview: Your employer can’t make you go to one. I’d suggest not giving an exit interview unless the firm offers to pay you the equivalent of your salary for the time it takes to do one. The trouble with exit interviews is that anything you say can come back to bite you later. I’ve seen people who were accused of making threats or engaging in inappropriate behavior during their exit interviews. If you do have the session, avoid the temptation to blast your supervisors or complain about their incompetence or mismanagement. Remember: These are the people who will be giving references to potential employers. So no matter what you think of them, hold your tongue. It could serve you well in the future. 
• Gather your documents: Start gathering documentation of anything they owe you (commissions, bonuses, contracts, etc.), proof of any deals still in the pipeline you think you may be entitled to be paid on after you leave, copies of all employment agreements, confidentiality agreements and noncompete agreements you signed, your performance reviews, evaluations, commendations, awards, write-ups, disciplines, recommendation letters -- anything you can get about your performance, bad or good anything else you think might be useful to a lawyer or to unemployment. Copy any thank you notes, letters or great comments you’ve received from your boss; take any plaques, certificates and awards home (in case you’ll be asked to leave abruptly) and get a copy of your personnel file if you can, as well as the employee handbook and benefits policies. Be discreet, though. Don’t empty out your office in one day. If you do, your employer may say you quit. 

Hopefully you'll never be in the situation of losing your job, but be ready if you think it's about to happen. When the axe falls, you'll be too stunned to act rationally. Next week I'll talk about what to do during that termination meeting and right after.