Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, 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?