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, October 22, 2020

Give Yourself A Break

In these times of political turmoil and pandemic, employee stress levels are off the charts. So I'm here to tell you to give yourself a break.

Most people aren't taking their vacations this year, and I think that's a mistake. Even if it's a staycation, take some rest and relaxation time to chill, work on a hobby or catch up on reading. You don't want  to burn out. Especially now, it's a really bad time to lose your job. Stress leads to mistakes, and mistakes lead to firing.

You can also just stop doing some activities that are not absolutely necessary. That's a break in itself. As you can probably tell if you're a regular reader of this blog, I gave myself a break. I was super-stressed after lockdown for a number of reasons. So I stopped updating my Twitter feed for awhile, and stopped writing this blog for several months. Sometimes you just need to give yourself a little break from the extra stuff you do.

I've also taken one actual vacation this year, by driving instead of flying to North Carolina for two weeks this summer. We're doing it again in a few weeks. Yes, it's stressful to drive, but the change of location was worth it.

So give yourself a break. De-stress. If vacation or punting on unnecessary tasks doesn't do it for you, then you might need help. If you are paralyzed at work, prone to anger, or having thoughts of violence to yourself or others, please get help. There are counseling services offering free or low-cost services during the pandemic.

Not sure if you need help? Take an anxiety test or a depression test to find out. You aren't alone. Many of us are suffering right now. Do what you need to feel better.

Thursday, October 15, 2020

Can I Be Fired Because Of My Political Beliefs?

 It's election time, and in these emotionally-charged times there are lots of disputes arising in the workplace over politics. Can you be fired because of your political beliefs? Maybe. It depends on where you live. 

Here are some things employers can't do during this political season:

Limit Discussions On Which Candidates Would Improve Working Conditions: While employers can certainly prohibit general political discussions and political campaigning at work, the National Labor Relations Act says that private employers cannot prohibit discussions about workplace conditions. Therefore, if employees discuss an employer's lengthy email about why a candidate is better for them as workers, then the employer can't fire employees who voice that the employer's email is full of misleading and incorrect information and that the other candidate is very clearly the better choice for working Americans. On the other hand, employers can force you, as a captive audience, to attend meetings and listen to one-sided political pitches on behalf of candidates unless you live in Oregon, which has the Worker Freedom Act. New Jersey has a similar law.

Discriminate Based On Political Affiliation: Not all states have laws prohibiting this, but many do. States that don't have such laws may have county or city ordinances that specifically prohibit political affiliation discrimination. California, Colorado, New York, North Dakota and Louisiana say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. Here in Broward County, it's illegal to fire employees based upon political affiliation. If you work for government, there's the good old First Amendment to protect you. Plus, the Civil Service Reform Act of 1978 prohibits political affiliation/activity discrimination against federal employees.

Discriminate Based on Race, Sex, Religion, National Origin, Etc.: If your employer limits political discussions by some, but not all employees, then they may run afoul of discrimination laws. Much of today's partisan politics is about religion, for instance. Women's issues and racial issues are hot topics in this political season. The presidential candidates are of two different religions. The vice presidential candidates are of different races and sexes. If your employer wants only one point of view expressed in your private sector job, the First Amendment won't help you but discrimination laws might. On the other hand, if you express racist or sexist views that reveal your propensity to engage in discrimination, your employer probably has a duty to fire or discipline you to protect coworkers.

Prohibit Labor Union Insignia: While employers can prohibit wearing of most political buttons, shirts and other campaign items, it can't prohibit union insignia. They could probably, for instance, prohibit a button that says, "Biden," but not one that says, "UNITE HERE for Biden."

Reimburse You For Political Contributions: If your employer says you should write a check to a candidate and agrees to reimburse you for it, they are breaking the law and could even go to jail.

Prohibit Time Off to Vote: Most states, but not all, require employers to let you take time off to vote.

State Laws That Might Help

In some states, employers' threats to terminate employees based on politics may be illegal. For instance, in Michigan, the laws prohibit direct or indirect threats against employees for the purpose of influencing their vote. It also prohibits tracking of political activity.

In Ohio, West Virginia, Pennsylvania and Kentucky, employers are prohibited from posting or handing out notices threatening to shut down or lay off workers if a particular candidate is elected.

In Oregon, it's illegal to threaten loss of employment in order to influence the way someone votes.

In Washington State, it's illegal to retaliate against employees for failing to support a candidate, ballot position or political party.

Some states, like California, Colorado, New York, North Dakota and Louisiana, say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns.

In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people."

In general, remember that the First Amendment doesn't protect you in a non-government workplace. Most states have no legal protection against political firings. So most employees have little or no legal protection.
Be careful out there, and don't forget to vote.

Thursday, May 28, 2020

No, Small Employers Are Not Exempt from CARES Act Leave

I'm hearing about lots of employers with fewer than 50 employees claiming that it is their choice whether to grant CARES Act emergency sick leave or FMLA. That is simply incorrect. Employers with fewer than 500 employees have to comply with the CARES Act leave requirements. However, there are some exemptions allowed to employers with fewer than 50 employees that aren't given to larger employers.

Per the Department of Labor, in order to deny CARES Act sick leave or FMLA, the employer must be able to prove:
(1) Such leave would cause the small employer's expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;  
(2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or  
(3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.  
For reasons (1), (2), and (3), the employer may deny paid sick leave or expanded family and medical leave only to those otherwise eligible employees whose absence would cause the small employer's expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively.
These exemptions will not apply to most employees, so beware denying leave to  employees who don't fit these criteria. If a small employer decides to deny paid sick leave or expanded family and medical leave to an employee, the small employer must document the facts and circumstances that meet the criteria to justify the denial.

All covered employers are required to post this poster describing CARES Act rights.

Frankly, covered employers who deny this leave are pretty idiotic because they get dollar-for-dollar tax credits for all wages paid under this leave. 

For more on the leave requirements and penalties for violations, see the DOL website here.

Thursday, April 30, 2020

COVID-19 Makes The Need For Unions Clear

Due to coronavirus, millions of Americans have been laid off and more layoffs are coming. The global pandemic has made the need for unions crystal clear. Unions all over the U.S. have valiantly been fighting for workers.

Here is just some of what unions have done to help their members during the pandemic:

Unionize now

Bottom line is that our country has almost no social safety net left and very few protections for workers. Those working in non-unionized workplaces have little or no protection. Unions are necessary to balance power between workers and management. It isn't too late if your workplace doesn't have a union. How about taking the time during your furlough or layoff to start looking into unionizing when you get back to work?

The first thing I'd suggest is talking to a union about how to unionize. They have organizers who can help you. Find the union that matches your workplace. There are unions for just about any kind of work you can imagine. I wrote an article here about how to start a union. More useful information on how to form a union can be found here, here and here. If you find a union you are interested in, they may have their own how-to page on their website. There are laws about what is allowed, so don't just try to unionize without getting some help from a union.

Thursday, April 2, 2020

Disability Discrimination and Accommodations During Coronavirus Pandemic

The good news is, disability discrimination is still illegal. I'm seeing employers laying off or firing employees because they think they'll be a liability or are at risk because of COVID-19. That's flatly illegal and wrong.

EEOC has issued a pandemic guidance that answers some of the many questions employers and employees have regarding the interplay between the Americans With Disabilities Act and coronavirus. Here are some answers to some common questions.

Is my employer allowed to take my temperature? Normally, no. It's a medical examination. The ADA prohibits employee disability-related inquiries or medical examinations unless they are both job-related and consistent with business necessity. EEOC says, "Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:
  • An employee’s ability to perform essential job functions will be impaired by a medical condition; or
  • An employee will pose a direct threat due to a medical condition."
In EEOC's summary What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, they say: "Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever."

So short answer, yes, during this pandemic, they can take your temperature.

Can my employer ask about my symptoms?: Normally, they are not allowed to ask information that will lead to the disclosure of a disability. That changes during the pandemic. Based upon the above, yes, they can ask if you have any coronavirus symptoms.

I have a disability that makes me more likely to die or be hospitalized from COVID-19. Can I stay home? You could have your doctor fill out FMLA paperwork (regular, not the new emergency FMLA) and/or put in for a reasonable accommodation for your disability under the Americans With Disabilities Act. Both of those are still in effect and should apply to you.

If you stay home you may be entitled to paid sick time.

Federal, state and local governments are constantly issuing new rules on who has to stay home, which businesses are essential, and what benefits workers may get, so stay tuned and I'll try to update you on major changes.

Wednesday, March 25, 2020

Yes, Age Discrimination Is Still Illegal In A Pandemic

Things you didn't think you had to say but apparently do: age discrimination is still illegal. Doh! Apparently some employers are freaking out right now due to the coronavirus pandemic and firing or laying off older employees to "protect" them.

No. No. No.

You cannot, I repeat, cannot take any action against someone due to their age. I don't care if you think it's for their own good. Unless the government orders otherwise, forcing someone to go on leave, firing them, demoting them, laying them off, if done because of their age, is illegal.

I am seeing this already, and while I'd like to make a boatload of money because employers are being idiots, I'd much rather see my clients keep their jobs and keep their insurance during this difficult time.

So cut it out.

Now, let's talk about the flip side. I'm also seeing older employees wanting to take leave or work remotely due to COVID-19. Laws that still apply are FMLA and the Americans With Disabilities Act.

So if your doctor gives you a note saying a reasonable accommodation for a disability is remote work or a leave of absence, the employer should grant it. And if your doctor will fill out FMLA paperwork for you saying you need a leave of absence, and your company has at least 50 employees within 50 miles, and you've worked at least a year; or if your doctor thinks you fit in the temporarily expanded FMLA, and your company has fewer than 500 employees, and you've worked at least 30 days, you should be entitled to take that leave.

But just age alone doesn't entitle you to any accommodation, so without any doctor's note, the only other thing that will help you is if the employer is making you work in dangerous conditions without protective gear, report them to OSHA.

There may be more laws and ordinances that come out as this thing progresses, but that's where we are now.

Monday, March 23, 2020

New Paid Sick Leave And Family Leave Law For Coronavirus

Well, bowl me over. Finally, a somewhat pro-employee law is signed into law, and all it took was a global pandemic. The Families First Coronavirus Response Act (P.L. 116-127) became law on March 18, 2020.

Emergency Family and Medical Leave Expansion: If you are unable to work (or telework) due to a need for leave to care for your son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, and your employer has fewer than 500 employees or is a public agency, and you've worked at least 30 calendar days for the employer, then you qualify for up to 12 weeks of FMLA, and your job is legally protected. 

Now don't get me started on why Amazon is exempt and tiny businesses aren't. That's the power of lobbying. But hey, at least it's a start. 

You still have regular FMLA if you need to care for a sick family member, which applies to employers with 50 or more employees in a 75 mile radius of your location and you've worked at least a year. 

Unlike regular FMLA, they have to pay you, not less than two-thirds of your regular pay, up to $200/day and a maximum of $10,000 total. The first 10 days taken may be unpaid, but you may use other paid leave during that period, such as accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. 

Which brings us to . . .

Emergency Paid Sick Leave:  You are entitled to up to two weeks of paid sick leave if you are unable to work or telework because of:
  • a quarantine or isolation order
  • have been advised by a healthcare provider to self-quarantine
  • have symptoms and are seeking a diagnosis
For the above, you get your regular pay up to $511/day and $5,110 maximum.
  • are caring for someone with any of the above, are caring for a son or daughter if the school or place of care of the son or daughter has been closed or the child care provider of your son or daughter is unavailable due to COVID-19 precautionsor, or
  • if you are experiencing any other "substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor."
For these, you get two-thirds of your regular pay, up to $200/day and $2,000 maximum.

This applies, again, if your employer has fewer than 500 employees or is a public agency, but there's no minimum period of employment.

Your employer can't demand you find a replacement, they can't make you use other sick or vacation time, and they can't discharge, discipline, or take other discriminatory action against you for taking this leave.


If your employer is a health care provider or an emergency responder, they don't have to comply with any of this if they don't want to. The exemption is automatic for the paid sick leave and will be subject to a regulation exempting them for the FMLA. Employers with under 50 employees may also be exempt from the sick leave under some circumstances.

There may be more coming down the road. Some states are enacting more protections. And the federal government is allowing states to expand unemployment compensation at the federal government's expense. Of course, Florida has done nothing so far to help employees. But hey, miracles happen, as is evidenced by this new law. 

Stay safe and stay home if you can!

Friday, March 13, 2020

22 Signs You're About To Be Laid Off

Sometimes a layoff takes employees by surprise. But there are usually signs, if you are paying attention. Here are some signs the company may be cutting back:

  • Paychecks bounce or are late: If your paycheck bounces or is late once, okay, maybe a glitch. But if it happens more than once, it's fair to assume the company is in trouble. Don't let them get further and further behind. If they aren't paying you, start looking and get the heck out of there.
  • Vendor checks bounce or are late: If vendors start complaining they haven't been paid, the company is probably  having financial trouble.
  • Job postings: It's good to keep track of company job postings. If you see a posting that looks suspiciously like your job, but it has a different title or lower pay, you are probably going to be "eliminated."
  • Out of the loop: If you're suddenly excluded from meetings, told to hand over information about your projects to someone else, they suddenly want you to describe from A to Z every single thing you do and how, or they suddenly want you to turn over all your business contacts, you're probably about to be replaced.
  • Budget cuts: A company in trouble may cancel projects or put projects on hold, start watching every single paper clip bought, or limit business travel and entertainment. Maybe that coffee quality drops or is eliminated. Free sodas and snacks disappear. That's a sign there's financial trouble.
  • Losses or revenue drops: If you have access to the company financials, some big losses, a major customer loss, or a severe or lengthy drop in revenue can signal long term financial trouble. If the company's product becomes the equivalent of a horse buggy, if a big product flops or fails to launch, if there's bad press, if the stock price drops, the company is in trouble.
  • Hiring freeze: When anyone leaves, someone else has to absorb their job. Double the work for the same pay. Fun! Time to start looking.
  • Supervisors are leaving: If your boss gets laid off or leaves, it may be time to look elsewhere. A new boss could want their own team, and many times bosses leaving can signal financial or other trouble in the department. If your bosses start taking their personal items home, that's a sign they're headed out.
  • Whispers and closed door meetings: If management starts having secret meetings or whispering, there is something afoot. It probably isn't good. 
  • Reassignments and restructuring: If entire teams starting being reassigned, positions restructured, even if it isn't your department yet, that's a sign there is some trouble brewing.
  • You lose access to email: If your password stops working for emails and other company documents, it's possible HR had a miscommunication with tech about when to pull the trigger. It may well not be a glitch. If you ask about it and there seems to be a lot of confusion and stammering, you're already gone.
  • Training: You're told to train a new employee in every aspect of your job. That's your replacement.
  • Won't look at you: If management or even coworkers suddenly can't look you in the eye, avoid you, or stop talking when you're nearby, you're being let go.
  • They used the words: If bosses start discussing or hinting about layoffs, restructuring, cutbacks, outsourcing, offshoring, or other similar terms, believe them.
  • Prior layoffs: If there has been a round (or more) of layoffs already, assume you could be next.
  • Conference rooms booked: If all the conference rooms are booked, especially if by HR, and even more especially if tissue boxes appear in them, a mass layoff is coming.
  • Security: If security guards start appearing, or if there is a sudden police presence, today is possibly layoff day.
  • Boss gets weird: If your boss starts acting odd, gives you a bad vibe, loses interest in your projects, looks uncomfortable, they may know something you don't about your future.
  • Raises on hold: If the company freezes wages, that's a sign there's financial trouble.
  • They tell you: If you have write-ups or disciplines, you are on notice you might lose your job. If they send you a WARN notice, there's definitely going to be a layoff.
  • Merger or acquisition: If your company is merging or being gobbled up by another company, there will be consolidations and cutbacks. This is always a very risky time.
  • HR wants to meet: If you're called into a meeting with HR, and they don't tell you what it's about, you may be getting let go at that meeting.

With some of these, you have enough warning to start looking elsewhere. If you are blindsided, just listen and take in the information. Don't do anything drastic or sign a severance agreement. Ask for copies of anyting they want you to sign and read carefully. Take to a lawyer if you don't understand or think you have potential claims.

Friday, February 28, 2020

What Are Your Employee Rights Regarding Coronavirus?

I've shuddered everytime I've read about another coronavirus quarantine, because I assume lots of folks are losing their jobs when they don't return from vacation. So what are your rights if you're quarantined? What are your rights if you get coronavirus? And what are your rights if your coworkers have coronavirus? Well, there are few certain answers, but there are some laws that might help:

State laws on paid sick leave: Some, not a majority, of states require employers to offer paid sick leave. Anti-employee Florida has no such law.

FMLA: If you've worked at least a year and your employer has at least 50 employees within 75 miles of your work location, you may qualify for FMLA. If you're sick with coronavirus, you have a serious medical condition that is almost certainly covered. However, if you're quarantined but not sick, it's less clear. The only case I found regarding quarantine and FMLA was regarding an employee who was actually sick. If the quarantine is in a hospital or medical facility, then it may be covered under the inpatient section of FMLA. There’s also a continuous treatment provision, protecting “any period of absence to receive multiple treatments by a health care provider…for a condition that would likely result in a period of incapacity of more than three consecutive full calendar days in the absence of medical intervention or treatment.” So if the quarantine requires repeated medical testing, then I think there’s a good argument FMLA applies. If you do qualify, then you get up to 12 weeks of leave, paid to the extent you have accrued vacation or sick time, the rest of the time unpaid. And your job is protected when you return.

OSHA: Employers that make workers come in with coronavirus may be violating OSHA regulations. Here’s what OSHA says about coronavirus:
There is no specific OSHA standard covering COVID-19. However, some OSHA requirements may apply to preventing occupational exposure to COVID-19. Among the most relevant are: 
OSHA's Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I), which require using gloves, eye and face protection, and respiratory protection. 
When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard (29 CFR 1910.134). 
The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 
OSHA’s Bloodborne Pathogens standard (29 CFR 1910.1030) applies to occupational exposure to human blood and other potentially infectious materials that typically do not include respiratory secretions that may transmit COVID-19. However, the provisions of the standard offer a framework that may help control some sources of the virus, including exposures to body fluids (e.g., respiratory secretions) not covered by the standard.
State quarantine laws: There are laws in some states, not Florida of course, protecting employees from being discharged due to complying with a quarantine.

Violation of public policy: While Florida, being the anti-worker state it is, has no such protection, many states have a claim for wrongful termination in violation of public policy. So if your state has decided public policy would require coronavirus victims to stay home, this might protect you from termination.

Disability discrimination: It's unlikely that coronavirus will be considered a disability, but if you are unfortunate enough to end up with a chronic condition from it, you may be protected under state and federal disability discrimination laws.

Unfortunately, many workers are not protected by any laws in case of a pandemic. Most won't get paid leave. Most don't have job protection. If I had a magic wand I'd make Congress and the Senate and the President stop squabbling and pass a law protecting workers in a pandemic. Otherwise, nasty bosses will require sick workers to come in or be fired, or sick workers who can't afford time off will work, and the virus will spread. With something like a 1 - 3% mortality rate, coronavirus could make a big dent in a large company, and could decimate a small one, so bosses should think before being jerks about sick time.

Tuesday, February 25, 2020

What @MikeBloomberg Should Have Said About His Inappropriate Comments

When asked about the sexual harassment complaints against him, Mike Bloomberg said, "“None of them accuse me of doing anything other than, maybe, they didn't like a joke I told." Groan. Why wasn't he prepared for this?

It's a pickle for his handlers, because there's a whole book out of his inappropriate comments at work. If I were prepping him, I'd have told him to get out in front of it before it turned into the debacle that it has become.

I'd have told him to say something like this:
Yeah, I've said some inappropriate things at work. I thought they were funny at the time but I realize now that people found them offensive. That's the problem with being the billionaire owner of  a business: nobody calls you on your sh**. I take responsiblity for that, and I'm glad my colleagues up here are calling me on it now. I pledge that, as your President, I will surround myself with people who will tell me if I'm screwing up, unlike the current President, who surrounds himself with yes-men and sycophants.
I agree with Liz that we need stronger laws against sexual harassment. For instance, there is no federal law prohibiting sexual harassment of interns. That needs to change. There's no federal law requiring sexual harassment training. That needs to change. The laws are so complicated now that many sexual harassment victims have to have law degrees to jump through all the legal hoops required to get relief. That needs to change. I would propose comprehensive overhaul of our sexual harassment laws to provide more protection to vulnerable employees. As a start, I'd support the “BE HEARD in the Workplace” Act. As your President, I would listen to sexual harassment victims and their advocates and work hard to make sure the laws protect all employees.
But that's just me. I'm sorry he didn't have a better answer. Now he'll have to backpedal and deal with this better during the campaign.

Friday, February 21, 2020

Dear Mike Bloomberg: Here's How You Should Have Answered the NDA Question

Without a doubt, Elizabeth Warren eviscerated Mike Bloomberg this week regarding the sexual harassment settlements his company has that contain non-disclosure agreements (NDAs). I don't know why he wasn't prepared for this question, as the issue has been all over social media. But here's what he should have said:
As a matter of fact, I have with me my signed modification of an NDA. As you know, non-disclosure provisions are part of a larger settlement or severance package, and they provide confidentiality of the agreement. They also provide that they can only be modified in writing signed by both parties. Here is my signed modification. Anyone who has an NDA with my company regarding any sexual harassment claim is free to sign this and then we're both authorized to speak freely about the matter. I agree with you Senator Warren. I think anyone who wants to be released from an NDA with my company regarding any sexual harassment claim should be able to speak freely if they want. 
You should also be aware that my state, New York, has enacted legislation to make sure that sexual harassment victims aren't forced to sign NDAs. In New York, starting in 2018, NDAs are not allowed if there are sexual harassment allegations unless the complainant is the one who requests it. I think that's a good law and I would support a similar law nationwide.
Here's why that would have been a great response: most complainants also don't want settlement agreements to be made public for a number of reasons, including:

  • Future employment: Most settlement agreements provide what the former employer can say about them to potential employers, usually limited to dates of employment and job title. What you don't want is for the employer to say something cute like, "I need to look at the agreement to see what I'm allowed to say," which is why I always negotiate for mutual confidentiality. If a potential employer finds out the applicant raised sexual harassment issues against a former employer, they may think the employee is going to be a troublemaker and not hire them.
  • Privacy: Look at what happened to Monica Lewinsky and Christine Blasi Ford. Would anyone really want their name dragged through the mud in a presidential race? Ms. Lewinsky's career path was damaged for a long time, and she faced threats and mudslinging. Ms. Ford had to move due to threats, whereas her harasser became a Supreme Court Justice. 
  • Envy: If coworkers think a victim got some "easy money," they may be subjected to retaliation and harassment at work. 
  • Retaliation: People who know the harasser may well retaliate against the victim.
  • Ability to negotiate: Many employers are willing to negotiate because they don't want the allegations to become public. That's the ugly side of NDAs, but it also gives employees leverage to negotiate a quicker settlement than had they filed a public lawsuit. Taking this ability away from them means that sexual harassment victims alone would be unable to use this leverage that every other potential litigant has before filing suit.
  • Keeping the ugliness away: Part of confidentiality is that the former employer won't be able to talk about what a terrible employee the victim was, which is what happens when a lawsuit is filed. the defense is almost always that the employee was fired due to poor performance, and not due to complaining about sexual harassment, along with a denial that any sexual harassment occurred. If the employer is free to slam the victim publicly, their reputation can be destroyed. I'm guessing a billionaire can do quite a bit of damage to a former employee if he were so inclined. Releasing confidentiality means the parties can speak about anything, including any allegations, the person's job performance, and any other relevant issue

In short, there can be all kinds of  reasons why a sexual harassment victim might want an NDA. Mike Bloomberg should have been ready for the question, and prepared to free anyone who wants to be freed. But they get freedom at their own peril. I wouldn't recommend it.

Friday, February 7, 2020

Court Says Boss Asking Questions About Oral Sex, Other Sexual Comments Not Sexual Harassment, Employee Can Be Fired For Reporting #MeToo

We had a brief respite from ridiculous rulings on sexual harassment during the past several years, but with Trump appointees now constituting 25% of the federal bench it was certain to change. The 11th Circuit had been pretty good on sexual harassment for awhile, but this new case tells me things are changing back to the bad old "four gropes rule" days.

In Allen v. Ambu-Stat, LLC, the 11th Circuit found that the boss/owner doing all of this over the course of 3 months wasn't either severe or pervasive enough to be sexual harassment:

  •  "[A] song came on the radio containing the lyrics “eating booty like groceries.” Santos asked Allen, “[D]oes your boyfriend eat that thang?” Allen replied that her boyfriend did not and did not know how to do so. Santos answered, “I could teach him.”"
  • "Allen recommended chocolate milk to help Santos with muscle soreness. A few hours later, Santos texted Allen that he loved chocolate milk, along with images of “tongue” emojis."
  • "Santos pointed out Allen’s groin area, which was wet with sweat, and commented, “Damn, that thing get wet like that!”"
  • Getting his son to slap her on the buttocks.
  • Multiple comments about her appearance and butt.

The Court said: "Plainly, Santos engaged in unsavory and unpleasant conduct. However, as we have emphasized, this type of boorish behavior, with this kind of frequency, is insufficient to constitute pervasiveness for a sexual harassment action under Title VII."

The wife/co-owner wrote the victim up for an "inappropriate conversation," namely the one about oral sex. When the employee/victim reported the boss/owner's comments, she was fired. The Court says that wasn't illegal retaliation, because what she reported wasn't sexual harassment, and she couldn't have had a good faith belief that it was.

So we're back to the bad old days of allowing employers to fire employees for reporting sexual comments. The Supremes say you have to report sexual harassment if you want to sue over it and give the employer a chance to fix it. But if you report it and you don't have a law degree and get it wrong, and it just isn't rapey enough to be sexual harassment in the Court's mind, then the employer can fire you for reporting it.

The opinion cites some cases that are also very bad for sexual harassment victims, so it's worth reading to see just how bad the law is on sexual harassment and how far we have to go.

And this is easy to fix. Compare this ridiculousness to New York's sexual harassment law. First of all, it applies to all employers, not just those with 15 or more employees. And instead of the "severe or pervasive" standard that has been used to doubly punish victims, as of October 11, 2019, this has been changed so that harassment is unlawful if it anything than "petty slights or trivial inconveniences." And isn't that how it should be?