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, June 24, 2022

Yes, Some Small Employers In Florida Can Be Sued For Discrimination

For the most part, discrimination cases can only be filed against employers with at least 15 employees. Federal law and Florida law both limit liability for most discrimination claims to employers with 15 or more employees. But some cities and counties in Florida allow discrimination claims to be made against employers with 5 or more employees. 

Miami-Dade County has such an ordinance. A new case out of the Third District Court of Appeals has confirmed that employees who work for employers in Miami-Dade County that have at least 5 employees can sue for discrimination in court. 

Is that earth-shattering news? No. That ordinance has been in place for many years. But employers have tried to resist lawsuits filed under the ordinance, saying that there is no private right of action under the ordinance. The alternative was to have an administrative hearing in front of the county equal opportunity board, which is difficult to coordinate. Now it's clear that employees can sue and have a judge and jury hear their discrimination case.

Other counties and municipalities in Florida that have ordinances allowing employees of small employers to bring discrimination claims include Broward, Cutler Bay, Miami Beach, Tampa, Orange County, Hillsborough County, Lee County, and Pinellas County. Whether employees can sue under these ordinances or must use local administrative hearings instead will depend on the language of the ordinance. 

In the recent case, the Court pointed to the clear language of the ordinance and found a private right of action exists:

In 2006, the Miami-Dade County Commission amended section 11A-28 to include:

(10) Enforcement by private persons. 
(a) If within one hundred eighty (180) days after a complaint is filed alleging discrimination, the Director [of the Commission on Human Rights] has been unable to obtain voluntary compliance with the provisions of this Article, the aggrieved person may demand a notice of right-to-sue from the Director, the issuance of which shall terminate the jurisdiction of the Director and the Board over such a complaint. Not later than ninety (90) days following receipt of the notice of right-to-sue, the aggrieved person may commence a civil action in a court of competent jurisdiction against the respondent named in the complaint. 
(b) If, in a private enforcement proceeding under this Article, the court finds that a discriminatory practice has occurred or is about to occur it may issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including temporary or permanent injunctive and other equitable relief, temporary restraining order, actual and punitive damages, reasonable attorney's fees, interest, costs or other appropriate relief.

Section 11A-28(10)

The result was as it should be. If a local ordinance provides for a private right of action, then employees can sue in court. 

It is now clear that, at least in Miami-Dade County, if your employer has at least 5 employees, it's illegal to discriminate, and you can sue if they do (after filing a charge of discrimination with the county and giving them at least 180 days to resolve it, and after getting a right to sue letter). 

Thursday, April 21, 2022

How To Make $400,000 By Being An A**hat; And, Are You One Of The Chosen?

 I had just read about the philosophy professor who claimed it was against his religion to refer to a trans woman as she/her, and then sued after he was disciplined. The college just settled for $400,000. This isn't the first case where an evangelical Christian has claimed that their religion prohibited basic human decency and manners. And that got me thinking.

I then went for a walk and went face-first into a spiderweb and had an epiphany. An enlightenment, if you will. A new religion. Maybe you'll want to join it. And before you say, hey, you can't just pull a religion out of a hat, first of all, I have Mormon clients you've just triggered. Second, all you need for a religion to be legally protected is a sincerely held belief, observance, or practice. Here's what EEOC says about religion:

Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Sikhism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.Further, a person’s religious beliefs “need not be confined in either source or content to traditional or parochial concepts of religion.” A belief is “religious” for Title VII purposes if it is “religious” in the person’s “own scheme of things,” i.e., it is a “sincere and meaningful” belief that “occupies a place in the life of its possessor parallel to that filled by . . . God.” The Supreme Court has made it clear that it is not a court’s role to determine the reasonableness of an individual’s religious beliefs, and that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” An employee’s belief, observance, or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief, observance, or practice, or if few – or no – other people adhere to it.

Here are the beliefs of this spiderweb-inspired religion:

Name of religion: The religion is called Church of the Chosen. Why? Because the Creator's chosen people have always been the downtrodden and bullied. The misfits. The Jewish people are a good example of the chosen people, as are everyone who has been looked down upon. So if you are are gay, lesbian, trans, queer, female, Black, Brown, ace, atheist, agnostic, nerdly, disabled,  wrong in all the right ways, an underdog, a nitty gritty dirty little freak*, or you celebrate Festivus, do cosplay, geek out on a hobby, expound on the glories of wine or beer, collect rocks or books, or ever played D&D, then you are one of the Chosen.

Creator: The Creator of all things does not care what you call them. You can refer to them as God, Jehovah, Allah, or Sue. However, they do want you to know that they are non-binary. They are neither male nor female, having no need for reproductive organs. All humans are made in their image, including male, female, intersex, non-binary, and all iterations of sexual identification and sexual preference. Their pronouns are they/them. They aren't saying if there are more than one, or none, of them.

Belief: The Creator does not care if you believe in them or not. They do not need any particular form of worship. You can be atheist, agnostic, Buddhist, Muslim, Jewish, Christian, Santeria, Pastafarian, or any other religion and still be part of the Church of the Chosen. 

Pronouns: The Chosen believe that people should be given the courtesy of being called by their preferred pronouns. The Chosen also believe their religion demands** that those who deliberately misgender must, forever after or until they relent, be called by the opposite gender. So, in the case of Nicholas Meriwether, the Chosen shall now refer to the now-rich philosophy professor as Ms. Meriwether, and use she/her pronouns. For those who refuse to use non-binary pronouns, they shall forever after or until they relent, be referred to as they/them. This is our sincerely held belief, one of our core beliefs, and it must be respected. We fully expect the Alliance Defending Freedom to represent anyone who is disciplined for doing so. As their senior counsel, Travis Barham, said, “This case forced us to defend what used to be a common belief — that nobody should be forced to contradict their core beliefs just to keep their job.”

Science: The Chosen believe in science. The Chosen believe in following the recommendations of the CDC, the WHO, and their physicians. We believe in getting recommended vaccinations unless we have an allergy or our doctor otherwise advises us against them. We believe in using masks to prevent the spread of deadly diseases. The Chosen also believe that they should not have to sit next to anyone who is both unvaccinated and unmasked for a deadly disease against the recommendation of medical professionals.  While the Chosen believe it is anyone's right to believe that masking hides the face and is against the Creator's will, the Chosen also believe that their religion demands they, and their children, avoid such people, who will almost certainly contaminate their bodies. Thus, they must assert a religious exemption if they believe they are being required to be exposed to such contamination.

Bodies: The Chosen believe that their religion demands they have control over their bodies, and that any decisions related to their bodies be between their doctors and them. The religion demands that the Chosen claim a religious exemption from the dictates of any government or other authority which would limit their ability to choose birth control, abortion, gender-affirming treatment, gender-affirming surgery, or make other choices about their bodies. The Chosen in the medical profession also believe that they must assert a religious exemption and refuse to abide by any government restrictions on what treatments they may provide to patients who have chosen to utilize birth control, abortion, gender-affirming treatment, or gender-affirming surgery. 

Education: The Chosen believe that children should be taught about all kinds of families, and that children and teachers should be able to speak about their own families. The Chosen also believe that it is sacrilege to fail to teach all aspects of history, good and bad. Teachers who are Chosen must claim a religious exemption and refuse to abide by restrictions on discussing same-sex parents, gender dysphoria, science, critical race theory, math, or banned books. Parents who are Chosen must insist that teachers and schools exempt their children and abide by their religious beliefs in this regard. 

Prayer: The Creator is not a personal genie. They do not want to be bothered by football games, craps games, school functions, civic meetings, or other trivial matters. The Chosen believe it is sacrilege to engage in public prayer other than in places of worship, prayer groups, or other places where 100% of those in attendance actively want to participate. The Chosen believe it is your absolute right to bother the Creator with whatever you want to bother them with, as long as you do not force others to listen in or participate. The Chosen believe that, if forced to listen to the prayers of others, their minds and bodies will be polluted. Therefore, they must demand a religious exemption to participating in and listening to all forced prayer.

Voting: The Chosen believe that all citizens of a democracy should be allowed to vote and that voting should be made as easy as possible for those citizens. Therefore, Supervisors of Elections and other employees who work on elections have a duty to claim a religious exemption from any and all laws and regulations in which they would be required to reduce the number of voting places, ballot drop-offs, and/or early voting days; make absentee voting more difficult; or make voting in person more difficult.

These are just some of the core beliefs of the Church of the Chosen. I may have more epiphanies about the core beliefs of the Chosen the next time I run face-first into a spiderweb.*** If you also hold some or all of these beliefs, you are one of the Chosen. It is now your religion. You can demand that public accommodations, schools, and workplaces respect and abide by your religion. If one religion can exempt itself from complying with laws and regulations, so must the Chosen.**** It is the way.

* Okay, that last part may be because I was listenng to Pink when my face hit the spiderweb, but who am I to question the Creator? Maybe Pink is a prophet.

** Because the Creator is known to be vindictive as heck. Lot's wife is a little salty about this.

*** Which happens almost daily, because the little buggers are sneaky and we have a large yard.

**** While this is written with some tongue in cheek, I am dead serious. These are my sincerely held core beliefs. If they are yours, then fight for your religious rights as one of the Chosen.

Wednesday, April 13, 2022

How To Claim A Religious Accommodation For COVID Vaccines

 First of all, let me say that I'm a big believer in the COVID vaccines. They work. That being said, if you have a real religious reason (not a political reason) for seeking an exemption to the vaccine, here's what you need to know.

EEOC just updated its guidance on this issue, so if you are serious about seeking a religious accommodation under Title VII, I suggest you read it. Here are some of the key points:

Be ready to answer some questions. EEOC has its own internal form that employers and employees can use as an example. Employers might have their own forms to fill out. Here are the questions EEOC has for its own employees to answer on the form:

1) Please identify the EEOC requirement, policy, or practice that conflicts with your sincerely held religious observance, practice, or belief (hereinafter "religious beliefs"). 

2) Please describe the nature of your sincerely held religious beliefs or religious practice or observance that conflict with the EEOC requirement, policy, or practice identified above. 

3) What is the accommodation or modification that you are requesting? 

4) List any alternative accommodations that also would eliminate the conflict between the EEOC requirement, policy, or practice and your sincerely held religious beliefs.  

What is a sincerely held religious belief?: "EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information. See also 29 CFR 1605."

What are alternative accommodations?: "An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment."

What are the employer's duties regarding an accommodation request?: "Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship. Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee. Such requests should be processed according to the same standards that apply to other accommodation requests."

Can the employer say no?: "Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. This is an easier standard for employers to meet than the ADA’s undue hardship standard, which applies to requests for accommodations due to a disability. Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine. Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee."

"If an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation." 

What can they ask about my religion?:  "However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information. An employee who fails to cooperate with an employer’s reasonable requests for verification of the sincerity or religious nature of a professed belief, practice, or observance risks losing any subsequent claim that the employer improperly denied an accommodation."

The sincerity of an employee’s stated religious beliefs, practices, or observances is usually not in dispute. The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” Section 12-I.A.2: Religious Discrimination (credibility and sincerity). Factors that—either alone or in combination—might undermine an employee’s credibility include: whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (for example, it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The employer may ask for an explanation of how the employee’s religious beliefs, practices, or observances conflict with the employer’s COVID-19 vaccination requirement. Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs—or degree of adherence—may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held. An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

So, when they ask about your religious belief, you need to give specifics. If you say that you believe the body is a temple that you are not permitted to pollute with chemical substances, or that your religion prohibits all vaccines, you will likely need to provide examples. So can you give examples such as not having been vaccinated since you joined this religion, not taking antibiotics, not taking any supplements to boost the immune system, etc? Is there a doctor who can confirm you refused such treatments when ill? Do you also decline alcohol and other similar substances? Do you refrain from eating processed foods and drinks that contain non-organic chemicals? This is the kind of information they are looking for. If you really do follow specific limitations in your medical treatment or consumption of chemicals, then you probably have a legitimate religious exemption. 

Does it have to be a traditional religion?: "The definition of “religion” under Title VII protects both traditional and nontraditional religious beliefs, practices, or observances, including those that may be unfamiliar to employers. While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, practices, or observances, employees may be asked to explain the religious nature of their belief, practice, or observance and should not assume that the employer already knows or understands it."

Some traditional religions do object to the vaccines. However, even Christian Scientists made an exception for them, so it is not very many religions. Catholics internationally object to none, but American Catholics in some areas object to Johnson & Johnson. 

I sincerely believe vaccinations are bad. Is that a religion?: "Title VII does not protect social, political, or economic views or personal preferences. Thus, objections to a COVID-19 vaccination requirement that are purely based on social, political, or economic views or personal preferences, or any other nonreligious concerns (including about the possible effects of the vaccine), do not qualify as religious beliefs, practices, or observances under Title VII. However, overlap between a religious and political view does not place it outside the scope of Title VII’s religious protections, as long as the view is part of a comprehensive religious belief system and is not simply an isolated teaching."

And then there's Florida: Florida has passed a law banning private corporations from mandating vaccines in the workplace unless they allow exceptions that include religion (as mentioned above, federal law already has exemptions for religion). The law details how to claim each exemption, and imposes fines on employers for noncompliance. Here's the form to claim an exemption in Florida. Other states have similar exemptions. If an employer in Florida does not accept an employee's properly completed exemption form, violations can be reported to the Attorney General. The Attorney General has the authority to impose fines for such violations:

  • Up to $10,000 for private entities employing less than 100 people
  • Up to $50,000 for private entities employing 100 people or more
Public employers, including educational or governmental institutions, are prohibited from imposing COVID-19 vaccination mandates. Violations for public employers can be reported to the Florida Department of Health through VaxPassFreeFL@FLHealth.gov.

Even with Florida's lax standards, if your employer catches you in a lie about your "sincerely held religious beliefs," you can be fired, so I suggest being serious about this. Don't claim a religious belief if you don't have a real one.

I guess watching Fox News is arguably being part of a cult, so maybe there's an argument there for a religious exemption. But seriously, get the vaccine if you can. If you don't have a medical or sincere religious reason, just get it. 

If you have a sincerely held religous belief against the vaccines, you might want to talk to an employee-side employment lawyer in your state about your rights.

Wednesday, April 6, 2022

Treasury Department Report Blasts Noncompete Agreements

 I wrote awhile back about President Biden's executive order on noncompete agreements. In it, he asked the FTC and other agencies to look into curtailing the use of noncompete and other anti-competitive agreements and practices. The Treasury Department just issued a report, presumably in an effort to comply, and it's damning in the extreme on the topic of noncompete agreements. 

Some juicy excerpts:

Firms can engage in tacit collusion by sharing wage information for different occupations, conspiring to fix wages, adopting no-poach agreements where firms agree not to hire other firms’ workers, or forcing workers to sign non-compete agreements that limit their ability to switch jobs.

Wage-setting power is also evident in the large number of workers who are subject to rules and agreements that limit their ability to switch jobs and occupations and, hence, their bargaining power. For example, a recent paper estimates that one-in-five workers is currently subject to non-compete agreements and double that number report having been bound by a non-compete agreement in the past.

Employers can also act to decrease the value of a worker’s outside options. For example, restrictive employment agreements that require workers to repay training costs if they leave the firm or non-compete agreements (both discussed in greater detail below) reduce worker power by increasing the costs of leaving the firm. Those costs are explicit in the case of training repayment programs but implicit in non-compete agreements. By preventing a worker from accepting positions well-suited to their skills, firms decrease the expected gains from a worker’s job search. 

By design, non-compete agreements limit employees’ outside options, which, in turn, weakens workers’ bargaining power and raises hiring costs for other firms. The limits are typically within a geographic area for a specific period and within a set of relatively similar occupations or industries but may be much broader. Balasubramanian (2017) models the effects of non-competes to show how this narrowing of outside options reduces employee bargaining power relative to their employer. All else equal, this leads to what they call a “lock-in” effect: lower worker mobility and longer tenure, as well as a flat or declining wage profile. Both the mitigation of the “hold-up” effect and “lock-in” effect mentioned above can reduce worker mobility. Lower worker mobility increases recruitment costs for all firms as fewer workers are seeking to switch jobs than otherwise would, absent the post-employment restrictive employment agreement. The increases in recruitment costs can lead to worse matches between employers and employees, lowering wages and aggregate productivity (Javanovic 2015).

However, the share of people who negotiate over a non-compete agreement appears to be quite small. Starr, Prescott, and Bishara (2021) find only about 10 percent of employees negotiate over their non-compete agreements. Therefore, it is unlikely that most employees demand (or receive) a compensating differential from signing a non-compete agreement. Furthermore, a worker with little bargaining power (e.g., low-income workers) or who is unaware they are bound by a non-compete (which may be more likely for less-educated workers) is unlikely to be able to secure a compensating differential in exchange for signing a non-compete agreement. To the extent that a compensating differential requires an explicit negotiation, certain workers may be less willing or able to do so—for example, Babcock and Laschever (2009) argue women are much less likely to negotiate during the hiring process. Accordingly, the share of workers whose wages increase as a result of non-compete agreements is small. While one of the main justifications for noncompete agreements (as well as other types of restrictive employment agreements) is mitigation of the “hold up” effect, there are far less restrictive means of addressing this problem. For workers with access to genuine trade secrets, there may be overlapping authority with trade secrecy laws, irrespective of the existence of a noncompete agreement.

Restrictive employment agreements, including non-compete, non-solicitation, and non-recruitment agreements, may reduce firm entry. In aggregate, this tends to lead to reduced demand and wage competition, leading to fewer appealing outside options for similarly situated workers. Samila and Sorenson (2011) find that increases in supply of venture capital funds has a stronger impact on firm start-ups, patent creation, and employment growth in states that have weaker enforcement of non-compete agreements, suggesting non-compete agreements may reduce certain types of entrepreneurial activity.

So long as the perceived probability of an employer attempting to enforce the contract is non-zero, restrictive employment agreements can create frictions. Consistent with this, Starr, Prescott, and Bishara (2020) present survey evidence that workers with non-compete clauses frequently decline job offers because of their preexisting non-compete agreement, even in states that do not enforce such agreements. Likewise, survey evidence also suggests that the incidence of non-compete clause inclusion in employment contracts is not strongly correlated with enforceability of non-compete agreements, which could suggest employers include such clauses even when they do not expect them to be enforceable. This partially occurs because people tend to be risk averse. Therefore, even in places where non-compete contracts are outlawed, the presence of unenforceable non-compete clauses can have a chilling effect on job-switching. The effects may be particularly severe for lower-wage workers, who may have limited access to legal counsel.  

Twenty-one percent of workers in the top income quintile are covered by a non-compete agreement compared to eight percent of workers in the bottom quintile of hourly wages. However, this still leaves millions of workers with minimal employer-specific training subject to non-compete agreements.

Unlike higher income workers, lower wage workers likely lack sufficient bargaining power to refuse a non-compete agreement. As a result, whereas non-compete agreements may increase top-earner wages at the expense of mobility, non-compete agreements appear to reduce both wages and mobility for lower-income earners. For example, Lipsitz and Starr (2021) find that the ban on non-compete agreements for hourly workers (who tend to be lower income) in Oregon increased overall hourly wages by 2–3 percent, with a stronger efect for female workers.

Starr, Prescott, and Bishara (2021) find that the huge number of low-skill workers subject to non-competes suggests that employers routinely apply them to workers who do not possess trade secrets or customer lists and are not given specialized training. They cite as an example a large sandwich chain, which subjected its workers to extremely broad non-competes. Though these non-competes are not likely enforceable under state law, they point out that they may have an in terrorem efect that deters employees from obtaining jobs at competing employers.

A decline in the competitiveness of labor markets lowers worker wages, may decouple wages from productivity, and likely diminishes the relative share of income that goes to workers. Moreover, actions of the firm such as requiring workers to sign non-compete agreements and limiting workers’ access to information diminishes worker mobility, implicitly reducing workers’ bargaining power relative to employers. 

These direct effects on workers’ wages, employment, and mobility have important broader negative impacts on the economy. Higher inequality likely makes it more difficult to sustain sufficient aggregate demand. Lower wages disproportionately impact women and workers of color. A large pool of low-priced labor likely weakens firm incentives to invest and improve productivity, while lower mobility diminishes productivity growth by hindering the reallocation of labor to more productive firms and industries. Non-compete agreements may prevent workers from starting their own businesses and discourage innovation. In short, a growing body of evidence suggests that declining labor market competition may stymie the drivers of U.S. economic growth. 

The use of non-compete clauses, especially among internet-based commerce firms, could be discouraging firm entry (Congressional Budget Office 2020). For instance, Marx, Strumsky, and Fleming (2009) finds that an unintended change in Michigan law boosting the enforceability of non-compete agreements led to sharp declines in the mobility of patent holders. Restricting the use of non-compete agreements and other restrictive employment agreements could allow for new firm creation, as workers at incumbent firms could leave the firm to pursue new ideas, thereby forcing incumbent firms to innovate to stay dominant. 

These are just some highlights. There's lots to unpack in this 68-page report, and I suggest you read it if you are interested. Summary: noncompetes are bad for society, bad for competition, particularly bad for low wage workers, and have the effect of suppressing wages, worker mobility, and innovation. 

And haven't I been saying this all along?

Wednesday, March 30, 2022

Discrimination Laws And The Will Smith Academy Awards Slap

Everyone who isn't on a desert island with no wifi knows that Will Smith slapped Chris Rock after Chris Rock made fun of Jada Pinkett Smith's alopecia. Lots of folks want blood. I hear many demanding that Will Smith's Best Actor Oscar be rescinded. Some say he should be expelled from the Academy. Others say he shouldn't be allowed to attend any more awards.

So let's look at the Academy's actual rules, and how they've handled similar incidents. Here's the rule that Mr. Smith violated:

In addition to achieving excellence in the field of motion picture arts and sciences, members must also behave ethically by upholding the Academy’s values of respect for human dignity, inclusion, and a supportive environment that fosters creativity. There is no place in the Academy for people who abuse their status, power or influence in a manner that violates recognized standards of decency. The Academy is categorically opposed to any form of abuse, harassment or discrimination on the basis of gender, sexual orientation, race, ethnicity, disability, age, religion, or nationality. The Board of Governors believes that these standards are essential to the Academy’s mission and reflective of our values.

The rules go on to say that, in case of a violation, the Board can consider any discipline permitted in their bylaws, including suspension or expulsion. The rules came out in response to #MeToo. It's notable that none of Harvey Weinstein's or Kevin Spacey's awards were rescinded. In fact, to my knowledge no actor has ever had their award rescinded.

First of all, Chris Rock also violated the rule, since he was harassing Jada Pinkett Smith on the basis of a disability, namely, alopecia. And before you tell me it isn't a disability, I assure you that it can be. For those demanding that Mr. Smith be arrested, it is to Mr. Rock's credit that he has declined to prosecute.

Second, there are many, many incidents that have occurred over the years of actors getting into actual fistfights. Not one was subjected to any discipline by the Academy that I've ever heard of. So possibly a private reprimand, but that's it. Here are 15 of the fistfights, a majority between white males. Here's a list of 9 fistfights, also a majority involving white males. So a single slap is a minor incident compared to the fistfights. Any discipline meted out more severe than a reprimand is going to be subject to discrimination claims.

Finally, if you said that Ted Cruz should have punched Donald Trump when Trump insulted Cruz's wife, sit down and shut up. And don't make me check your social media posts. You know who you are. And I bet some Academy Board of Governors members have some posts in that regard. I hope Mr. Smith's lawyers are searching those posts right now just in case.

In sum, yes, Will Smith violated the Academy's standards of conduct (as did Chris Rock). But his discipline should be proportionate to similar actions by non-Black actors and not a knee-jerk public execution. 

Thursday, March 24, 2022

The Only Way "Don't Say Gay" Is Consistent With Title VII Is Complete Gender Neutrality

I'm following up on my post Florida Don't Say Gay Bill Arguably Requires 100% Gender Neutrality Until 4th Grade, one, because I've thought more about it, two, because the law really irks me, and three, because I want to explain why an employment lawyer is writing about an education law.

If I go through my memories of law school, back when dinosaurs roamed, one of the things they taught us is the rules of statutory construction. That is, how judges are supposed to interpret laws after they are passed. And one thing that the rules of statutory construction say is that separate statutes must be read together, when possible, to achieve a harmonious statutory scheme. It is assumed that the legislature does not intend to create inconsistency. (Ha! Have they ever listened to a legislative debate?) But anyhow, that's one of the things a judge has to look at. 

And I keep coming back to two laws that are the backbone of any employment law practice: Title VII, which is the federal law prohibiting discrimination in the workplace, and the Florida Civil Rights Act, which is the state law prohibiting workplace discrimination. We all know that the Supreme Court has already ruled that sexual orientation discrimination is sex discrimination covered by Title VII. So sexual orientation discrimination or harassment based upon sexual orientation violates laws prohibiting sex discrimination in the workplace. That is established law. 

So how does that affect the interpretation of Florida's Don't Say Gay law? Let's look at it again: "Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards."

Let's look at two second grade teachers. Bob is married to a woman. Barb is married to a woman. Bob and Barb are both asked about their spouses by their students. If school boards, schools, or the state interpret this law to mean that Bob can answer but Barb can't, then they have violated Title VII and the Florida Civil Rights Act. If Barb is disciplined for mentioning her same sex spouse but Bob is not disciplined for mentioning his opposite-sex spouse, that is sex discrimination.

Barb is terrified that she might accidentally mention her spouse during class. If she is subject to extra scrutiny of her teaching methods due to her sexual orientation, that's sex discrimination.

Both Bob and Barb assign students a project to draw their families. Susie draws two dads. When it comes time for each student to discuss their families, do they have to skip Susie? Or tell her she can't mention the dads? Does that make Barb feel upset or attacked? If so, she is being harassed due to her gender. 

The school removes all books with two moms, two dads, any LGBTQ characters. Only straight characters and opposite sex marriages allowed in the library. Barb feels uncomfortable with this. She is being harassed due to her gender.

Now let's look at the gender neutral way to interpret the statute. Both Bob and Barb can talk about their spouses, but not use the terms "husband" or "wife." They can say spouse or partner. Both are treated equally. The kids label moms and dads as "parent" and refer to them as such. Both Barb and Bob are comfortable. The school leaves the books alone. Or removes all books relating to any kind of marriage or romance, including heterosexual ones. Both Bob and Barb feel comfortable. Nobody is being treated differently or made to feel uncomfortable due to their sexual orientation. 

So I repeat my assertion from last week. The Don't Say Gay bill may be the most accidentally woke law I've ever seen. I think that parents and students should insist that it be interpreted as requiring absolute gender neutrality. If schools, school boards, or the state of Florida does otherwise, school employees can bring workplace discrimination claims under Title VII and the Florida Civil Rights Act. And, although I don't do education law, students could have claims under Title IX, the law prohibiting sex discrimination in education.

Don't let the bigots get you down. Make them follow their new law to the letter, assuming it gets signed.

Tuesday, March 15, 2022

Florida Don't Say Gay Bill Arguably Requires 100% Gender Neutrality Until 4th Grade

 Florida teachers and school boards will have to be very careful now that the Florida legislature has passed the "Don't Say Gay" bill. It's actually called the "Parental Rights in Education" bill, and it addresses a number of issues. The big one, the most controversial one, is meant to keep teachers and schools from discussing LGBT issues in class. But that's not quite what it says.

Here's the provision:

Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards. 

Nowhere does the bill define either "sexual orientation" or "gender identity" to limit those terms to only LGBT issues. So we're left with the standard definitions of those terms. 

Websters defines "sexual orientation" as "a person's sexual identity or self-identification as bisexual, straight, gay, pansexual, etc. : the state of being bisexual, straight, gay, pansexual, etc."

Yes. Straight is included. Heterosexual is included.

Websters defines "gender identity" as "a person's internal sense of being male, female, some combination of male and female, or neither male nor female."

Yes, people born male and identifying as male are included. People born female and identifying as female are included.

As I read this, strictly construing the actual words used in the statute, there can be no instruction in K-3rd grade using the terms "boys," "girls," "husband," "wife," "mother," or "father." All instruction must be completely gender neutral, using "they" or "them." Students cannot be instructed to use the "boy's room" or the "girl's room." For gym, they cannot be instructed to use the "boy's locker room" or the "girl's locker room."

Is this what the legislature intended? Probably not. It was intended as a measure to bully LGBT students and their parents. But I think those parents can fight back by demanding absolute gender neutrality in their student's education in K-3. Once they're in 4th grade, the school can then instruct them about gender identity, including boy/girl, and sexual orientation, including heterosexuality.

So when teachers tell their students to draw a picture of their families, they can say the picture is of a parent, but not mom or dad. When teachers discuss married couples in history, they can say they were spouses, not husband or wife. And maybe that's the way it should be.

I think parents of LGBT should demand their rights under this statute once it's signed by the Governor. If my kids were still in school, I'd do it immediately. Tell the Florida legislature to be careful what they wish for.

Under the rest of the bill, there's a process. School districts must develop a plan and notify parents of the process to address any concerns, first at the school level, and then at the district level. Then, if not resolved, the parent may either ask for an administrative magistrate to hear the issue or file a lawsuit.

Teachers should advise the schools that they will only teach in gender neutral terms. School boards should set policies in accordance with the actual language of this bill.

Teachers who object to any other form of non-gender-neutral instruction can argue they are protected whistleblowers if they are disciplined for refusing to disobey this ridiculous law.

Thursday, March 10, 2022

Harassment, Hostile Environment, and Bullying: How To Figure Out If They're Illegal

Many employees have the mistaken belief that, if they are being harassed by their employer, a supervisor, or a co-worker or they are in a "hostile work environment" that they automatically have a claim against the employer. This is simply not the case. While general harassment and bullying are legal in all states, some states have pending legislation on workplace bullying. Since 2003, many states have introduced workplace bullying laws, none of which have passed (except, oddly, Tennessee, and that's just for government employees).

Illegal harassment: The only types of harassment or hostile environment that are illegal are harassment due to race, age, sex, sexual orientation, religion, national origin, color, disability, pregnancy, genetic information, having objected to illegal activity, having taken Family and Medical Leave, making a worker’s compensation claim, or having engaged in activity that is otherwise protected by a statute (in some states, other categories might be taking domestic violence leave, having a firearm in your vehicle, marital status, because of testimony under subpoena). If your boss is just a jerk or abusive, that is not illegal. And many small employers are not covered by these laws, so you may not be protected at all.

Report it: The other thing that I hear way too much of is, “I was harassed, so I quit and then I told them why.” This is a frequent mistake. The United States Supreme Court (not my rule - talk to the folks in the robes) says that, where an employer has a published sexual harassment/discriminatory harassment policy, the employee must report it under that policy and give the employer the opportunity to fix the situation. If you did not avail yourself of the employer’s policy before quitting, you are giving up your right to sue for a violation.

Employer’s duty: Appropriate remedies may be to discipline or warn the harasser, to move the harasser, under some circumstances to move the victim, to do training, or in extreme cases, to terminate the harasser. But they don’t have to take any action at all, or tell you what they did. They only have a duty to maintain a safe workplace. You might still have to work with the harasser. Many employees simply refuse to go back to work, even where the employer has warned or disciplined the harasser. Sometimes, the fear is justified. But it is the employer’s duty to create a safe workplace. If you return and are retaliated against or continue to be harassed, report it again. If the employer allows retaliation or continued harassment, that is the time to get an attorney involved. Employers will usually take accusations of this type of conduct seriously. Once they are on notice, they will be held liable if they allow it to continue, and they know it. And most employers know that this behavior is disruptive, has nothing to do with making money, and can adversely affect morale. Even if the employer takes no action, by reporting their inaction to EEOC or your state agency, you have put these agencies on notice that this behavior is occurring. The employer will have no excuse when the harasser does it to the next employee. And in some cases, you may have a remedy.

What to put in the report: General harassment, hostile environment, bullying, and other disruptive behavior that is not addressed to an employee due to a protected status or activity is not illegal. So before you write the long letter airing all your grievances against your boss, you may want to have an attorney look at it, or just make sure you are addressing your protected status. If you do complain, put it in writing and call it, “FORMAL COMPLAINT OF SEXUAL HARASSMENT,” or “FORMAL COMPLAINT OF RELIGIOUS HARASSMENT” or whatever category you fit into. Set forth the harassment due to your protected status, and be businesslike. This is not the time to air all your complaints about the business or your boss, only to air the specific complaint about the illegal behavior. While a long letter stating that your supervisor is incompetent or a jerk can and should get you fired, the formal complaint addressing illegal behavior should get a serious response.

Bullies are a huge drain on corporate time and assets. Employers should adopt zero tolerance policies regarding bullies. But even if they do, reporting bullies won’t protect you from retaliation unless your state legislature or Congress wises up and passes an anti-bullying law.

If you are harassed or are in a hostile work environment, make sure you understand your rights and responsibilities. Report it to the employer and give them a chance to address the situation. If they allow the harassment to continue, or if they retaliate, contact an attorney to discuss your legal options.

Thursday, March 3, 2022

Florida Employers Must Grant Leave To Domestic Violence Victims

I've always said that Florida is one of the most anti-employee states in the nation. But we do have some pro-employee laws. One law that many employers forget about is Fla. Stat. Sec. 741.313, which requires them to give leave to employees who are domestic violence and sexual violence victims.

Who is covered?: This applies to employers with 50 or more employees and to an employee who has been employed for at least 3 months. “Victim” means an individual who has been subjected to domestic violence or sexual violence.

When are you covered and how long?: "An employer shall permit an employee to request and take up to 3 working days of leave from work in any 12-month period if the employee or a family or household member of an employee is the victim of domestic violence or sexual violence. This leave may be with or without pay, at the discretion of the employer."

What can you use the leave for?: Seeking an injunction, getting medical help, going to a shelter or crisis center, securing the home, and getting legal assistance. Here are the specifics.
This section applies if an employee uses the leave from work to: 
1. Seek an injunction for protection against domestic violence or an injunction for protection in cases of repeat violence, dating violence, or sexual violence;
2. Obtain medical care or mental health counseling, or both, for the employee or a family or household member to address physical or psychological injuries resulting from the act of domestic violence or sexual violence;
3. Obtain services from a victim services organization, including, but not limited to, a domestic violence shelter or program or a rape crisis center as a result of the act of domestic violence or sexual violence;
4. Make the employee’s home secure from the perpetrator of the domestic violence or sexual violence or to seek new housing to escape the perpetrator; or
5. Seek legal assistance in addressing issues arising from the act of domestic violence or sexual violence or to attend and prepare for court-related proceedings arising from the act of domestic violence or sexual violence.

How much notice do you have to give?: If you or a family member are in imminent danger, none. Otherwise, you have to give "appropriate advance notice of the leave as required by the employer’s policy along with sufficient documentation of the act of domestic violence or sexual violence as required by the employer."

What if you have other leave?: "An employee seeking leave under this section must, before receiving the leave, exhaust all annual or vacation leave, personal leave, and sick leave, if applicable, that is available to the employee, unless the employer waives this requirement."

Can your employer tell coworkers about your domestic violence leave?: No. They have to keep it confidential.

Can your employer punish you for taking leave?: No. 

(a) An employer may not interfere with, restrain, or deny the exercise of or any attempt by an employee to exercise any right provided under this section.
(b) An employer may not discharge, demote, suspend, retaliate, or in any other manner discriminate against an employee for exercising his or her rights under this section.

What is your remedy?: You can file a civil suit for damages or equitable relief, or both, in circuit court. You can seek all wages and benefits that would have been due up to and including the date of the judgment had the act violating the law not occurred, but you can't claim wages or benefits for a period of leave granted without pay. You still have to mitigate damages by looking for another job or accepting reinstatement if offered.

So there. I said something good about Florida employment law. Happy? 

This law has been on the books since 2007, and there have been precious few pro-employee laws since then (or before). We can still do much better by looking to other states for some pro-employee laws that make sense.

Thursday, February 24, 2022

Claiming A Religious Exemption For Vaccines Or Masks? Here's What You Need To Know

 Lots of folks don't want to wear masks and/or get vaccinated. Almost daily I get inquiries about how to claim religious exemptions for them. 

I don’t know of any religious exemptions for masks. I've never heard of any religion claiming they are not allowed. I'd love to hear from you if you know of one. Some religions do object to the vaccines. However, even ChristianScientists don't have an official policy for them, so it is not very many religions. Catholics internationally object to none, but American Catholics in some areas object to Johnson & Johnson. Even then, it is allowed if it's the only one available. Mostly, I am hearing from people in some more obscure Christian sects that say they are not allowed to be vaccinated.

Here are some things to think about if you are claiming a religious exemption. A company may ask a question like this to follow up a claim of religious exemption:

Please describe above the manner (if any) that the same religious beliefs that are the basis for your objection to the COVID-19 vaccine impacts or informs other aspects of your life or manifests itself in other ways of your life. Please be as specific/detailed as possible.

If your employer asks this, they are looking for examples other than the COVID vaccine relating to, for instance, believing the human body is the temple of God, not wanting the skin to be marked, not wanting to pollute or defile the body, or not using chemical substances to boost the immune system.

Some ways to answer this:

  • Can you give examples such as not having been vaccinated, or not being vaccinated since a conversion, not taking antibiotics, or not taking any supplements to boost the immune system, etc? 
  • Is there a doctor who can confirm you refused such treatments when ill? 
  • Do you also decline alcohol and other similar substances?
  • Do you refrain from having tattoos?

They are looking for specific examples, not Bible passages or long rants. If you can show that you have been consistent, then you will likely succeed and be granted a religious accommodation. They might require an alternative, such as masking or remote work instead.

In Florida, all you have to do is fill out one form for a vaccine exemption, and they have pre-filled what you need to provide. All it says is, "Pursuant to section 381.00317, Florida Statutes: I hereby declare that I decline the COVID-19 vaccination because of a sincerely held religious belief, which may include a sincerely held moral or ethical belief." Other states have similar forms that simplify the claim of a religious exemption.

However, while the Florida form is very basic, you'd best have a good answer if your employer finds out you've had other vaccines, or otherwise have been inconsistent in your application of those beliefs. While they can't fire you for claiming an exemption, they can still fire you for lying.

The other issue with a religious exemption is that an employer can claim allowing it will cause a hardship. And a hardship isn't that difficult to prove for a religious accommodation. All they need to show is more than a de minimis cost or burden on business operations. 

So claiming a religious exemption is not something I recommend unless you truly have a religious objection, rather than a personal or political one. If you have a sincere religious belief against vaccinations, then go ahead and request a religious accommodation, but expect that they will require other protective measures or claim an undue hardship and fire you.

Thursday, February 17, 2022

No Forced Arbitration For Sexual Harassment Is A Good Start

The House and Senate have passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. It will go into effect once signed by President Biden. This law will ban forced arbitration and class action waivers  for all claims regarding sexual assault and sexual harassment. This was the House version, which is much better than the original Senate version that limited what was defined as sexual harassment. The version passed covers all sexual harassment cases as we know them.
Here's what it says:

§ 401. Definitions

“In this chapter:

“(1) PREDISPUTE ARBITRATION AGREEMENT.—The term ‘predispute arbitration agreement’ means any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.

“(2) PREDISPUTE JOINT-ACTION WAIVER.—The term ‘predispute joint-action waiver’ means an agreement, whether or not part of a predispute arbitration agreement, that would prohibit, or waive the right of, one of the parties to the agreement to participate in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum, concerning a dispute that has not yet arisen at the time of the making of the agreement.

“(3) SEXUAL ASSAULT DISPUTE.—The term ‘sexual assault dispute’ means a dispute involving a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18 or similar applicable Tribal or State law, including when the victim lacks capacity to consent.

“(4) SEXUAL HARASSMENT DISPUTE.—The term ‘sexual harassment dispute’ means a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.

Ҥ 402. No validity or enforceability

“(a) In General.—Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

“(b) Determination Of Applicability.—An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.”.

While this doesn't apply to sex discrimination that isn't harassment (such as a termination, suspension without pay, denial of promotion or failure to hire where sexual favors aren't requested), it does apply to harassment due to gender, and to harassment due to sexual orientation, as well as to harassment when sexual favors are requested. If you are singled out for harassment due to either gender or sexual orientation, that is sexual harassment under Title VII and under some state law, such as the Florida Civil Rights Act.

There is a move afoot to ban forced arbitration in other types of discrimination and harassment cases. This is a good start, but it isn't the end.

Why does it matter? Because arbitration is a secret tribunal, which is bad enough. Arbitration started as a good thing, where both parties chose it as a quicker way to resolve cases. The arbitrators were experts in complicated matters like construction. But it's come a long way from that.

The way forced arbitration works now is the big arbitration companies contract with corporations to be the arbitration forum they use for employment disputes. While the parties can pick from panel members and veto others, the panels tend to be skewed to pro-employer arbitrators. After all, if Arbitrator A rules against Company B, Arbitrator A is then forever vetoed as a panelist for Company B. And Company B spreads the word. Arbitrator A gets fewer and fewer cases. Goodbye income as an arbitrator.

So it's in arbitrators' interests, especially full-time arbitrators, to rule for employers. They don't care if employees, who will be in front of them once, are upset. They do care if a company that will be in front of them 200 times will be upset and veto them.

I'm not saying all arbitrators think like this. Many are still true neutrals. Heck, I'm an arbitrator. Because of my background representing employees, I'm rarely picked in employment cases because employers think I won't be neutral (untrue, by the way). Management-side lawyers and HR folks get picked a lot, and can make a nice income from them. 

Under many agreements, employees must pay half the arbitration expenses. Arbitrators are paid by the hour, and filing fees in high dollar cases can be huge. Employees can be forced to shell out thousands of dollars, if not tens of thousands of dollars, just to pay for the arbitrator and filing fee. Court costs a moderate filing fee of a few hundred dollars. Judges are paid by tax dollars, so the parties pay nothing.

I've seen too many situations where employment arbitration was basically an expensive kangaroo court. And there's almost no remedy. No appeal. No ability to challenge most rulings. And because it's secret, sexual harassment and sexual assault can be kept secret. Court is public. Anyone can attend a trial or hearing. Employers hate that.

Employers love the arbitration system. Love, love, love it. Employees should fight forced arbitration wherever they can. Now is a good time to call your representatives and tell them it's time to end forced arbitration.

Thursday, February 10, 2022

How To Prove Race Discrimination In The Workplace

You'd think after Black Lives Matter that people would realize race discrimination still exists. Still, many folks think we had a Black President, so that was the end of race discrimination. It can be difficult to prove race discrimination, but it isn't impossible.

How do you figure out whether you were targeted due to your race? Here are some factors to consider:

  • Comments: If your boss makes comments about race, that's direct evidence of race discrimination. Maybe they have made comments complaining about BLM. Or they've posted racist stuff on social media. It doesn't have to be the n-word or anything that blatant. Comments about "the hood" or other more subtle comments about certain areas or people can indicate racism. 
  • Different treatment: If you are selected as one of the employees to be laid off but less qualified employees of a different race are kept on, then that is also evidence of race discrimination. Same if you apply for a job. Let's say the position you apply for requires a certification. You have it but the White employee is working to get it. You're more qualified. Seniority can also be a measure of your qualifications. If you've been in the position for 5 years with all good reviews and the promotion is given to an employee of a different race, that could be evidence of race discrimination. 
  • Disparate discipline: If you are targeted for discipline for picky things that employees of a different race also do and aren't disciplined for, then that is another sign that you are being targeted due to race. Sometimes, you're given the option of taking a demotion rather than a layoff. If others are offered this option but the Black employees aren't, that could be race discrimination in itself. If you are terminated for something people of a different race have done with only a warning, that is evidence of race discrimination.
  • Harassment: If you are being targeted for harassment but employees of a different race are not, that is also evidence of racial harassment. If there are other employees of your same race under the same supervisor, are they also being targeted? 
  • Evidence: Remember, your own testimony is evidence. So are your notes. Chats, emails, voice mails, photos, printouts of social media, can also be evidence. If you have witnesses, ask them to write you a note about what happened if you think they will support you. Or if you don't feel comfortable asking, at least keep track of witness names and any contact information you have.
What to do? If you think you've been targeted due to your race, then there are some steps to take.
  • Report it: If it's harassment, meaning basically something that doesn't affect your wallet, then you need to report it to HR or management. Look in your handbook to see where it says to report discrimination. The Supreme Court says that if you are being harassed due to your race and don't report it, the employer might not be liable for discriminatory harassment. I suggest putting it in writing. Call it Formal Complaint of Race Discrimination. Then lay out in detail all the ways you are being singled out due to your race. Keep a copy of what you send. That way they can't deny later that you complained about race discrimination. Remember, say the words. Bullying and general harassment aren't illegal.
  • Keep good notes: Write down all the comments and ways you've been singled out. Make note of dates, times, and any witnesses. Keep copies of documents, text messages, emails, chats, and other evidence. Take them home or keep them in a purse or briefcase. Don't keep them in your desk or somewhere the employer can take them away from you.
  • Contact a lawyer: If you think you're being targeted due to your race, especially if you have been demoted, suspended without pay, or terminated, talk to an employment lawyer in your state
  • File with EEOC: Filing with EEOC is something you must do before filing a lawsuit under Title VII for race discrimination. Depending on your state, you have 180 days or 300 days to file. You might want to talk to a lawyer before doing so. EEOC can't award you money, but they do have a terrific mediation program, so if your employer agrees to participate it could settle there without the hassle of a lawsuit.
While proving race discrimination can be difficult, if you gather enough evidence and keep good notes, you are well on your way to proving your case.

Thursday, January 27, 2022

What To Expect In #Employment Law In 2022

 If you are a regular reader, you've probably noticed that I haven't done any predictions in the past few years. Because how could anything have possibly been predicted? But employment law is becoming more predictable now, and I think it's time to take a deep breath and do my Cassandra bit. Here are my predictions for 2022:

1.    More pro-employee NLRB: We've already seen this with some very pro-employee, pro-union decisions coming down regarding Amazon, Starbucks, and other unionization attempts. As the year progresses, we'll see NLRB cracking down on employer retaliation and union busting efforts. We'll also be back to seeing more pro-employee decisions on non-union "concerted activity" retaliation.

2.    EEOC will re-energize: They were cut to the bone in budget and staffing under the last administration, so it's taking a bit for them to bounce back. They'll also focus on issues like sexual orientation that got pushed aside under the last administration. I hope they'll fully staff the mediation divisions, because those folks are really terrific at settling cases.

3.    Supremes go anti-employee: Unfortunately, while the agencies will be more pro-employee, the courts are going to take a sharp anti-employee turn. Look for really pro-management decisions on the federal level.

4.    Paralysis on noncompetes: Even though President Biden issued an executive order asking the federal agencies to focus on noncompetes, there's little the agencies can do without legislation. Congress won't do anything. Neither will the Florida legislature. Maybe some pro-employee states will limit or ban noncompetes. Some have done it already. Will more follow?

5.    Sexual harassment crackdown: With President Biden's order criminalizing sexual harassment in the military, the issue will get more attention. Where the military goes, usually goes the rest of the nation, so we should see some more crackdown on sexual harassers.

6.    COVID, COVID, COVID: The virus will continue to be an issue. OSHA will continue to try to get employers to maintain safe workplaces. The Supremes and the right wing will continue to fight. Florida will continue to be the Wild West. 

7.    More unions: As NLRB becomes more employee-friendly, we'll see more unionization attempts. Once Amazon is forced to allow a union (and it will happen this year), employees of other workplaces previously thought impossible will begin efforts to unionize. Some will succeed. The Great Resignation has made employees more conscious of working conditions. They'll continue to fight to be treated fairly. Union busters will make a fortune this year as employers try to fight back.

8.    Disability discrimination: Now that employees realize that it's easy to work remotely, and now that employers want employees back in the office, we'll see more disability discrimination cases. Employees who seek remote work as a reasonable accommodation will face resistance, but employers will lose the argument that granting the accommodation is a hardship. After all, they had a year or more of remote work very successfully. 

9.    Zoom: I don't know about you, but I love Zoom. Having to do a 2 - 3 hour round trip for a 5 minute hearing is a huge waste of resources. Judges like it because they have more control. For non-evidentiary hearings, Zoom will remain in many courtrooms. We'll also continue to see more Zoom depositions and mediations, which work very well on that platform. This will make attendance by employees much less onerous. They won't miss as much work, for one. In employment law, it will be a huge benefit. I find that employees are way more likely to settle in a Zoom mediation where they feel comfortable and more relaxed. Employers will also continue to utlize Zoom or similar platforms for meetings rather than having employees commute from remote locations. 

10.    Anti-employee laws: We'll see some extreme anti-employee laws in red states as the right wing pushes to be more and more extreme. Expect some laws attacking LGBT folks, abortion, marijuana, protests, and free speech. Some of these laws will give employers extra protection against lawsuits for terminating employees for their activities outside of work.

Well, that's about all I think I can predict for now. Let's see how I do. It's still crazy out there, but hopefully things will get a bit more normal as 2022 progresses.