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.

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.