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

Thursday, 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.