Florida Legislator Wants To Make It Illegal To Say Gay (Or Your Pronouns) At Work

Florida seems to be in a race with Texas and some other red states to see which can be the worst state for employees in the nation. Now a legislator has proposed a law (which will likely pass, because GOP be cray cray) that would be similar to the now-infamous Don't Say Gay bill but apply to workplaces. 

Some gems from this ridiculous-but-likely-to-become-law bill include:

Training is illegal: It would be illegal to provide training that included issues of gender expression, gender identity, or sexual orientation.

Pronouns are illegal: It would be illegal to discuss your preferred pronouns or for your employer to tell anyone else your preferred pronouns.

Misgendering is legal: It would be illegal for an employer to punish coworkers for deliberate misgendering.

This idiotic law would apply to state employees and nonprofits. So nonprofits that cater to the LGBTQ community would not be able to train employees, discuss pronouns, or punish employees for deliberate misgendering of trans people, including their clients. 

As I said, Florida is likely to pass this law, and our governor will, of course, sign it. So brace yourselves.

The good news is that LGBTQ discrimination is illegal under Title VII, so I'm sure there will be litigation over this. The Supremes are the ones that said Title VII applies to sexual orientation and societal expectations regarding gender roles. Will they reverse themselves? Very possibly.

Vote well friends. Vote blue in every single election if you want the crazy train to stop.

Have A Visual Disability: EEOC Issues Guidance On Your Workplace Rights

 EEOC has issued a guidance to assist workers with visual disabilities regarding their workplace rights. This guidance discusses:

• when an employer may ask an applicant or employee questions about a vision impairment and how an employer should treat voluntary disclosures;
• what types of reasonable accommodations applicants or employees with visual disabilities may need;
• how an employer should handle safety concerns about applicants and employees with visual disabilities; and
• how an employer can ensure that no employee is harassed because of a visual disability.

Who is covered: EEOC says this about coverage for visual disabilities under the Americans With Disabilities Act

Under the first prong of the ADA’s definition of disability, an individual with a vision impairment who is substantially limited in seeing or in the major bodily function of using special sense organs (here, the eyes), has an “actual disability.” Under the second prong of the ADA’s definition of disability, an individual with a history of an impairment that substantially limits a major life activity—even if the impairment no longer exists—is considered to have a “record of” a disability. An applicant or employee may have a “record of” a disability, for example, when the individual’s substantially limiting vision impairment has been corrected surgically.

Whether an impairment “substantially limits” a major life activity is not meant to be a demanding standard. A vision impairment does not need to “prevent, or significantly or severely restrict,” an individual’s ability to see in order to be a disability, as long as the individual’s vision is substantially limited when compared to the vision of most people in the general population. Further, a determination of disability must ignore the positive effects of mitigating measures (other than “ordinary eyeglasses or contact lenses”) that an individual uses. For example, mitigating measures may include the use of low-vision devices that magnify, enhance, or otherwise augment a visual image. An individual with a vision impairment who uses low-vision devices will be substantially limited in seeing compared to most people in the general population who can see without the use of such devices. Another type of mitigating measure is the use of learned behavioral modifications (for example, an individual with monocular vision may turn their head from side to side to compensate for the lack of peripheral vision). An individual with monocular vision, regardless of such compensating behaviors, will be substantially limited in seeing compared to most people in the general population. An individual who is blind should easily be found to have an “actual disability” under the ADA, because they are substantially limited in the major life activity of seeing.

While using glasses or contacts isn't a covered disability, many other vision impairments are covered. Employers can't ask about your vision pre-hiring. They can ask, however, if you can perform the duties of the job with or without accommodations. If you can perform the job with accommodations, the answer is yes. You don't have to disclose the accommodations before being hired. After hiring, they can ask about what the accommodations are in order to determine whether they are reasonable.

Under the ADA, the period after offering an applicant a job but before the individual starts working is called the “post-offer period” and the job offer may be subject to an applicant’s responses to medical questions and/or passing a medical exam. This means, when an applicant discloses after receiving a conditional job offer but before starting work that the applicant has or had a vision impairment, the employer may ask the applicant additional questions, such as:how long the applicant has had the vision impairment;
what, if any, vision the applicant has;
what specific visual limitations the applicant experiences; and
what, if any, reasonable accommodations the applicant may need to perform the job.

After obtaining basic medical information from all applicants, an employer may follow up with an individual who has disclosed a vision impairment, or the extent of a vision impairment, to seek additional information, if additional questions or a requested medical examination is medically related to the information already received. An employer may ask this individual to answer questions specifically designed to assess the applicant’s ability to perform the job’s functions safely.

An employer may not withdraw an offer from an applicant with a vision impairment if the individual is able to perform the essential functions of the job, with or without reasonable accommodation. If the employer has concerns that the applicant’s vision impairment may create a safety risk in the workplace, the employer may conduct an individualized assessment to evaluate whether the individual’s impairment poses a direct threat (that is, a significant risk of substantial harm to the health or safety of the applicant or others that cannot be eliminated or reduced through reasonable accommodation).

There are many types of accommodations that are considered reasonable. EEOC gives many examples in this guidance that will be a good reference if you are seeking accommodations.

There is a wide range of possible changes in the application process, or in the way an employee performs the work, that can serve as reasonable accommodations for individuals with vision impairments. These can include, for example: assistive technology (such as text-to-speech software); accessible materials (such as braille or large print); modification of workplace/employer policies or procedures (such as allowing the use of guide dogs in the work area), testing (such as allowing alternative testing), or training; ambient adjustments (such as brighter office lights); sighted assistance or services (such as a qualified reader);or other modifications or adjustments that allow a qualified applicant or employee with an ADA disability to enjoy equal employment opportunities.

In general, employers must accommodate disabilities in the workplace, including visual disabilities. This guidance will be an important source of information to individuals with visual disabilities in the workplace. 

Were You Harassed At Work? EEOC Issues New Guidance on Workplace Harassment

 I have to say this almost daily, and I'll say it again here: general harassment at work is not illegal. Harassment because you are you is not illegal. Bullying is not illegal. However, bullies tend to pick on the weak and the different, and that may mean the bullying is illegal. EEOC just issued new proposed guidelines on what constitutes illegal workplace harassment and how to prove it. I'll touch on some highlights.

EEOC goes through characteristics that are legally protected and gives examples. Here's what they say about race and color discrimination:

Race and color: Race-based harassment includes harassment based on a complainant’s race, e.g., harassment because the complainant is Black, Asian American, white, or multiracial.Examples of harassing conduct based on race include racial epithets or offensive comments about members of a particular race, or harassment based on stereotypes about the complainant’s race. It also can include harassment based on traits or characteristics linked to an individual’s race, such as the complainant’s name, cultural dress, accent or manner of speech, and physical characteristics, including grooming practices (e.g., harassment based on hair textures and hairstyles commonly associated with specific racial groups). Color-based harassment includes harassment based on skin tone.

Example 1: Color-based Harassment. Shawn, a Pakistani-American with brown skin, files a charge of discrimination alleging that two of his direct supervisors have subjected Shawn to unlawful harassment based on color. Shawn alleges that on a near-daily basis, his supervisors call him “turd” and otherwise make comments to him that suggest his skin is the color of human feces. According to Shawn, one supervisor exited the bathroom, placed a cup containing feces on Shawn’s desk, and stated the feces looked like Shawn. Based on these facts, Shawn has alleged harassment based on color.

They also describe national origin, sex/gender, religion, pregnancy/childbirth/related conditions, sexual orientation and gender identity, age, and disability-based harassment and give examples. 

Here are some other issues they cover:

Erroneous perception: "Harassment based on the perception that an individual has a particular protected characteristic, for example, the belief that a person has a particular national origin or religion, is covered by federal EEO law even if the perception is incorrect.[47] Thus, harassment of a Hispanic person because the harasser believes the individual is Pakistani is national origin harassment, and harassment of a Sikh man wearing a turban because the harasser thinks he is Muslim is religious harassment, even though the perception in both instances is incorrect."

Association: "The EEO laws also cover “associational discrimination.” This includes harassment because the complainant associates with someone in a different protected classor harassment because the complainant associates with someone in the same protected class. Such association may include, but is not limited to, close familial relationships, such as marriage, or close friendship with another individual belonging to a protected group."

Same class: "Harassment that is based on the complainant’s protected characteristic is covered even if the harasser is a member of the same protected class."

Societal expectations: "Harassment based on protected characteristics includes harassment based on social or cultural expectations regarding how persons of a particular protected group, such as persons of a particular race, national origin, or sex, usually act, appear, or behave.This includes, but is not limited to, harassment based on assumptions about racial, ethnic, or other protected characteristics, or sex-based assumptions about family responsibilities, suitability for leadership roles,or sex roles."

Example 9: Causation Established Based on Sex Stereotyping. Eric, an iron worker, alleges he was subjected to sexual harassment from his foreman, Joshua. The investigation reveals that Joshua found a remark Eric made to be “feminine” and then began calling Eric “pu__y,” “princess,” and “fa___t,” often several times a day. Several times a week, Joshua approached Eric from behind and simulated intercourse with him. On about ten occasions, Joshua exposed himself to Eric. Based on these facts, the investigator concludes that Joshua targeted Eric based on his perception that Eric did not conform to traditional male stereotypes and subjected Eric to harassment based on sex.

Causation: The guidance gives many examples of how to prove that it was discrimination that caused the behavior as opposed to something else. 

Example 10: Causation Established by Social Context. Ron, a Black truck driver, finds banana peels on his truck on multiple occasions. After the third of these occasions, Ron sees two white coworkers watching his reaction to the banana peels. An investigation reveals no evidence that banana peels were found on any other truck or that Ron found any trash on his truck besides the banana peels. Based on these facts, an investigator concludes that the appearance of banana peels on Ron’s truck was not coincidental. The investigator further finds that the use of banana peels invokes “monkey imagery” that, given the history of racial stereotypes against Black individuals, was intended as a racial insult. It thus constitutes harassment based on race.

Example 12: Comparative Evidence Gives Rise to Inference that Harassing Conduct Is Based on a Protected Characteristic. Tyler is a manager for an educational services firm. Tyler directly supervises two women, Kailey and Anu, and two men, Sandeep and Levi. Tyler grants Kailey’s request for time off to visit her dying sister. When Kailey returns, Tyler confronts her and yells at her for not reading her “damn email” while she was away. From then on, Tyler regularly hovers over Kailey and Anu as they work to make sure they don’t “mess up.” Tyler also yells and shakes his fist at Kailey and Anu when he is angry at them. This conduct continues, and Kailey and Anu file EEOC charges alleging harassment based on sex. During the investigation, the investigator finds that Sandeep and Levi report that Tyler, although occasionally irritable, generally engages in friendly banter with them that is different from the aggressiveness that Tyler displays toward female employees. Tyler sometimes even allows Sandeep and Levi to relax in his office in the afternoons, doing little or no work. Tyler also permits Sandeep and Levi to leave the office early and does not monitor their work performance. Tyler’s different treatment of women and men who are similarly situated would support an investigator’s conclusion that Tyler’s treatment of Kailey and Anu was based on their sex.

This proposed guidance is pretty comprehensive and is a good resource to review if you think you've been illegally harassed. When in doubt, talk to an employee-side employment lawyer in your state about your rights. 

Mandatory Religious Liberty Training By Extremist Anti-Abortion Group Coming To Your Workplace

 In a WTAF moment I'm still trying to process, Southwest Airlines has been ordered to provide religious liberty training to its lawyers. The training is part of the remedy a judge appointed by TFG has ordered after the airline lost a religious discrimination case. So far not so bad, right?

But the judge has ordered the training be done by the Alliance Defending Freedom, a far right extremist anti-abortion group that wrote the Missouri abortion ban and worked to overturn Roe. They are currently suing the FDA to ban abortion pills. 

I just don't see how forcing them to undergo this kind of extremist religious indoctrination doesn't violate the lawyers' religious liberty. Appoint a real trainer, not some zealots.

The order is stayed now pending appeal, but the case is terrifying. If this case stands, then employers can be ordered to indoctrinate employees in right-wing extremism.

If you find this disturbing, vote blue in all elections, especially Senate and the President, but lower races as well. 

Does Your Noncompete Agreement Violate the National Labor Relations Act?

 The NLRB General Counsel is taking the position that noncompete agreements in employment and severance agreements violates the National Labor Relations Act.

Non-compete provisions are overbroad, that is, they reasonably tend to chill employees in the exercise of Section 7 rights, when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, aptitudes, and preferences as to type and location of work. Generally speaking, this denial of access to employment opportunities chills employees from engaging in Section 7 activity because: employees know that they will have greater difficulty replacing their lost income if they are discharged for exercising their statutory rights to organize and act together to improve working conditions; employees’ bargaining power is undermined in the context of lockouts, strikes, and other labor disputes; and, an employer’s former employees are unlikely to reunite at a local competitor’s workplace, and, thus be unable to leverage their prior relationships—and the communication and solidarity engendered thereby—to encourage each other to exercise their rights to improve working conditions in their new workplace.

In addition, non-compete provisions that could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting access to other employment opportunities chill employees from engaging in five specific types of activity protected under Section 7 of the Act. First, they chill employees from concertedly threatening to resign to demand better working conditions. Specifically, they discourage such threats because employees would view the threats as futile given their lack of access to other employment opportunities and because employees could reasonably fear retaliatory legal action for threatening to breach their agreements, even though such legal action would likely violate the Act. Second, they chill employees from carrying out concerted threats to resign or otherwise concertedly resigning to secure improved working conditions. Although extant Board law does not unequivocally recognize a Section 7 right of employees to concertedly resign from employment, such a right follows logically from settled Board law, Section 7 principles, and the Act’s purposes. It is also consistent with the U.S. Constitution and other federal laws. Accordingly, I will urge the Board to limit decisions inconsistent with that right to their facts or overrule them.  

Is this a magic wand that makes your noncompete go poof? No. But it gives you another weapon in your arsenal to challenge your noncompete agreement, assuming your employer is covered by the NLRA (most are). The key here to challenging noncompetes through the National Labor Relations Act is concerted activity. You'd have to be part of a group of employees that want to threaten to resign or go to a better workplace. By yourself, the challenge probably fails. 

Plus, there is no caselaw supporting this specific issue, so there's no guarantee the federal courts as currently constituted (the Supremes have been very pro-employer) would uphold this interpretation.

If you think your noncompete may violate the National Labor Relations Act, you can file a charge against employer with the NLRB within 6 months of the alleged violation, or talk to an employee-side employment lawyer in your state about your rights.

Fired for Advocating for Non-Employees? You May Have Rights

The National Labor Relations Board has ruled that employees who advocate for non-employees such as applicants and interns are legally protected by the National Labor Relations Act. The NLRB Chair said, "“Standing in solidarity can be a protected act regardless of the employment status of those you stand with — the question is simply whether, in helping others, employees might help themselves and get help in return."

The case involved an employer's refusal to rehire a former employee. An employee who attempted to rally coworkers in support of the former employee was deemed legally protected.

The thing about the National Labor Relations Act is that it protects "concerted activity" and not just you acting on behalf of yourself. So trying to get coworkers to support an intern or a potential hire now falls within the legal protections of the NLRA.

The Board explained what constitutes "concerted activity":

Thus, as the Board has explained, the statutory concept of protected concerted activity has two elements: the employee’s activity must be “concerted,” and it must be “for mutual aid or protection.” E.g., Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151, 152–153 (2014). 

“[W]hether an employee’s activity is ‘concerted’ depends on the manner in which the employee’s actions may be linked to those of his coworkers.” Id. at 153 (citing, inter alia, NLRB v. City Disposal Systems, 465 U.S. 822, 831 (1984)). The Board has held that concerted activity “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). Notably, the “object of inducing group action need not be express,” and an employee’s statement may, in certain contexts, “implicitly elicit[] support from his fellow employees.” Whittaker Corp., 289 NLRB 933, 933–934 (1988). As the Board stated in Meyers II, “the question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.” 281 NLRB at 886. “Mutual aid or protection,” in turn, “focuses on the goal of concerted activity; chiefly, whether the employee or employees involved are seeking to ‘improve terms and conditions of employment or otherwise improve their lot as employees.’” Fresh & Easy, supra, 361 NLRB at 153 (emphasis in original) (quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)). Both the “concertedness” and “mutual aid or protection” elements under Section 7 are analyzed under an objective standard, whereby motive for taking the action is not relevant to whether it was concerted, nor is motive relevant to whether it was for “mutual aid or protection.” Id.

The Board further elaborated: "It is well established that “the activity of a single employee in enlisting the support of his fellow employees for their mutual aid and protection is as much ‘concerted activity’ as is ordinary group activity.” Whittaker Corp., supra, 289 NLRB at 933 (1988) (quoting Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969))."

Bottom line is that you are allowed to speak up about working conditions and to attempt to get coworkers to take action regarding working conditions. You don't have to succeed in rallying coworkers to join you. Advocating on behalf of non-employees such as potential employees and interns is now legally protected. 

If an employer retaliates against you for doing so, or for taking any other protected concerted action, then you can file a charge against employer with the NLRB within 6 months from the date of retaliation.

BREAKING: If Employer Commits Unfair Labor Practice Before Union Election, Union Is Automatically Recognized

In a total game-changer, the NLRB has ruled today that, where an employer commits unfair labor practices before a union election, the union is automatically recognized and the employer must bargain. 

It doesn't appear to apply to every unfair labor practice in every election. But it will force employers to behave better before union elections or risk having the union automatically recognized. Here's a summary:

• It applies where a majority of employees have said they want the union to represent them and the employer either challenges the union majority and demands an election.
• It applies if the employer refuses to bargain without filing a petition for an election and challenges the election due to unfair labor practices.
• It applies if the union has filed a petition for an election.
• If the employer commits an unfair labor practice that requires setting aside the election, the employer will be subject to a remedial bargaining order.
• Employers are no longer allowed to frustrate the election process.
• If the employer interferes with the election process,  NLRB will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer.
• "Simply put, an employer cannot have it both ways. It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way."

Here's what NLRB said about the new standard:

Under the standard we adopt today, an employer violates Section 8(a)(5) and (1) by refusing to recognize, upon request, a union that has been designated as Section 9(a) representative by the majority of employees in an appropriate unit unless the employer promptly139 files a petition pursuant to Section 9(c)(1)(B) of the Act (an RM petition) to test the union’s majority status or the appropriateness of the unit, assuming that the union has not already filed a petition pursuant to Section 9(c)(1)(A).140 Section 9(c)(1)(B) of the Act grants employers an avenue for testing the union’s majority through a representation election if the Board, upon an investigation and hearing, finds that a question of representation exists. In order to reconcile the provisions of Section 8(a)(5) and Section 9(a), which require an employer to recognize and bargain with the “designated” majority representative of its employees, with the language of Section 9(c)(1)(B) granting employers an election option, we conclude that an employer confronted with a demand for recognition may, instead of agreeing to recognize the union, and without committing an 8(a)(5) violation, promptly file a petition pursuant to Section 9(c)(1)(B) to test the union’s majority support and/or challenge the appropriateness of the unit or may await the processing of a petition previously filed by the union.  

 However, if the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order. Thus, this accommodation of the Section 9(c) election right with the Section 8(a)(5) duty to recognize and bargain with the designated majority representative will only be honored if, and as long as, the employer does not frustrate the election process by its unlawful conduct. As the Supreme Court observed in Gissel, Section 9(c)(1)(B) was not intended to confer on employers “an absolute right to an election at any time; rather, it was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a union’s majority in a secret election which they would then presumably not cause to be set aside by illegal antiunion activity.” 395 U.S. at 599. If the employer commits unfair labor practices that invalidate the election, then the election necessarily fails to reflect the uncoerced choice of a majority of employees. In that situation, the Board will, instead, rely on the prior designation of a representative by the majority of employees by nonelection means, as expressly permitted by Section 9(a), and will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer. 

Our focus, then, is on the unlawful conduct of the employer that prevents a free, fair, and timely representation election. Given the strong statutory policy in favor of the prompt resolution of questions concerning representation, which can trigger labor disputes, we do not believe that conducting a new election—after the employer’s unfair labor practices have been litigated and fully adjudicated – can ever be a truly adequate remedy. Nor is there a strong justification for such a delayed attempt at determining employees’ free choice again where the Board has determined that employees had already properly designated the union as their majority representative, consistent with the language of the Act, before the employer’s unfair labor practices frustrated the election process. Simply put, an employer cannot have it both ways. It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way.

An employer that refuses to bargain without filing a petition under Section 9(c)(1)(B) may still challenge the basis for its bargaining obligation in a subsequently filed unfair labor practice case. However, its refusal to bargain, and any subsequent unilateral changes it makes without first providing the employees’ designated bargaining representative with notice and an opportunity to bargain, is at its peril.

This will make it much easier for workers who are organizing a union to have their union recognized. And it should stop much of the a**hattery that goes on during union-busting. 

Union yes! 

EEOC Issues New Rules for Pregnant Workers

The Pregnant Workers Fairness Act is now in effect, as of June 27, 2023. It applies to most employers with 15 or more employees. It requires employers to grant reasonable accommodations to employees with known limitations related to pregnancy, childbirth, or related medical conditions.

EEOC has provided details on what is required:

Covered employers cannot: 

• Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation;
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
• Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
• Interfere with any individual’s rights under the PWFA.

They provide examples of what may constitute reasonable accommodations:

• the ability to sit or drink water; 
• receive closer parking; 
• have flexible hours; 
• receive appropriately sized uniforms and safety apparel; 
• receive additional break time to use the bathroom, eat, and rest; 
• take leave or time off to recover from childbirth; and 
• be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.  

EEOC states: "Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is significant difficulty or expense for the employer." This is the same as the standard for reasonable accommodations under the Americans With Disabilities Act.

While employers were required to provide some accommodations before this law, the standards were much more lax and gave employers more leeway. This new law makes clear that employers must grant reasonable accommodations to pregnant, nursing, new moms, people recovering from miscarriages, people with post-partum depression, and other pregnancy-related and post-pregnancy-related conditions.

This new is in addition to Title VII, the Americans With Disabilties Act, PUMP Act, the Family and Medical Leave Act, and any state and local laws that may apply.

If your employer has denied you a reasonable accommodation for a pregnancy-related condition, contact an employee-side employment lawyer in your state about your rights.

New NLRB Handbook Rules Means Many Employer Handbook Provisions Are Illegal

NLRB has issued a new standard for evaluating employer work rules and employer handbooks. It applies to non-union and union workplaces that are covered under the National Labor Relations Act, which means most employers are covered. Under the new standard, the person challenging a rule or handbook provision must prove that the challenged rule has a reasonable tendency to chill employees from exercising their rights to engaged in concerted activity to discuss or change working conditions. If so, then the rule is presumptively unlawful. 

However, the employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.

This is a sea change from the prior standard, and it will make it much easier for employees to challenge rules. The new standard appeared in a case where the following rules were successfully challenged:

• Confidentiality of investigations
• Limiting personal calls and emails to family emergencies
• No personal electronic devices or cell phones to be kept in lockers and used only on breaks
• No behavior that harms the business reputation of the company
• No activity that adversely reflects on the integrity of the company
• No photos
• No recordings

If these sound familiar, it's because similar rules are in many company handbooks. If they're in yours, you may be able to file an NLRB charge against employer if you want to challenge the rule.

The Board explained how to evaluate a "chilling effect":

In determining whether an employer’s rules or policies restrict or chill employee’s rights to engage in protected activity, one must consider if: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; (3) or the rule has been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage Village—Livonia, 343 NLRB 646, 646–647 (2004). Where a rule or policy explicitly restricts Section 7 activity or can be reasonably read to restrict such activity, the Board is required to evaluate the employer’s asserted business justification “[t]o strike a proper balance between the employees’ rights and the Respondent’s business justification.” Caesar’s Palace, 336 NLRB 271, 272 (2001). The Board must accommodate the respective rights of the parties “with as little destruction of one as is consistent with the maintenance of the other.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).

I know. Blah, blah, blah. What this means is if you would think a rule prohibited you from engaging in discussions or activities with coworkers regarding working conditions, it's probably illegal. If the rule was made because of union activity or because employees were discussing a potential union, it's probably illegal. If the rule has been applied to restrict employees' ability to discuss or take action together regarding working conditions, it's probably illegal. 

Some rules that may well be affected by this ruling, in addition to the ones I mention above, include:

• Not saying negative things about the company
• Restricting social media use and comments about the company
• Limiting or regulating the ability of employees to make safety complaints
• Restricting meetings or discussions with coworkers
• Restricting the circulation of petitions
• Prohibiting or limiting comments to the media or government agencies
• Prohibiting insubordination
• General civility rules

You don't have to be disciplined under these rules in order to challenge them. So if you think a rule is illegal, you can contact the NLRB about it. If you have been fired for violating a rule you think may be illegal, especially if you were fired for discussing working conditions with coworkers, contact an employee-side employment lawyer in your state about your rights.

Don't Expect Noncompete Relief Until Next Year Says FTC

 Although we've been hoping that the FTC would come through on its proposed rule banning or limiting noncompete agreements, it looks like we'll have to wait. They've announced they won't be voting on the final rule until April 2024. 

That's bad news for workers. Noncompetes have been abused to suppress wages, prevent employees from looking for better jobs, create fear among employees that they will be terminated and unable to work, and force employees to work in terrible conditions. They've been used against sandwich makers and receptionists. 

That doesn't mean you have no remedies. Depending on your state law, there are defenses to noncompete agreements.

While Florida is one of the most anti-employee states in the nation, both federal and Florida antitrust law require that employers have a legitimate interest other than preventing competition in order to enforce a noncompete agreement. Absent a legitimate interest, the agreement violates antitrust laws. Some other states have additional defenses to enforcement.

When in doubt about your noncompete agreement, get some advice from an employee-side employment lawyer in your state.

Did The Supreme Court Just Make It Legal To Discriminate?

As I'm sure you've heard unless you've been in outer space for the past couple weeks, the Supreme Court ruled that a person who thinks she might want to have a web designer business (but who has never actually designed a website in said business) could refuse to design a website for a gay marriage that she was never actually asked to design. SMH. Let's put aside the issue of whether this should have been a case in the first place, and deal with the question that is on everyone's mind: 

Is it legal to discriminate now?

Answer: Well, no. Not really. But maybe. Sigh.

The actual ruling says this: "Held: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees." Seems not so bad, right? And it has nothing to do with hiring and firing, so it has no express immediate effect on employment discrimination laws. But the decision does open the door to future interpretations that are pretty bad.

The interesting part of this ruling is that it isn't based on religion. The Court didn't say people can use their religion to discriminate. At least not yet. Well, at least not in this particular opinion. Instead, they based it on free speech.

So people are asking me, can I post a sign on my business that says, "We don't hire bigots or homophobes"? The answer is probably, but you probably could have done that before this decision. What you (probably) can't do is post a sign that says, "We don't hire evangelicals." And in places like my county which prohibits political affiliation discrimination, you (probably) can't post a sign saying, "We don't hire Republicans."

The fake web designer in this case swore up and down that she would accept business from LGBTQ customers, and that her only problem was with gay marriage websites. Do we believe her? Heck no. She doesn't even have an active web designer business yet, and the only alleged customer who asked about a gay marriage site is straight and says it never happened. But still. The Court focused not on discrimination against LGBTQ people, but on this: "Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction." They also focused on the fact that her alleged profession is creative one that is "expressive in nature."

So let's look into the future and assume she actually will eventually have a real website design business. Let's assume she will be so busy she needs staff. What will happen if a gay website designer who is married to a person of the same sex applies? Can she say that the business reflects her personal expression and her sincere beliefs prohibit her from endorsing gay marriage  by hiring such a person? Probably a stretch, but I can see it happening. Can she hire the person but say that her sincere beliefs prohibit her from providing insurance to his spouse? Very possible (see the Hobby Lobby case).

How will this case apply to employment law in the future? Well, I have some strong suspicions about how evangelical employers will try to apply it. But what about other employers? What if your beliefs are similar to those of The Chosen? What if your sincere belief is that those who deliberately misgender must, forever after or until they relent, be called by the opposite gender, and those who refuse to use non-binary pronouns, must forever after or until they relent, be referred to as they/them. Can you ask in interviews about the person's beliefs on pronouns and misgendering? Maybe. If so, can you automatically disqualify anyone who says their religion requires the opposite? Hmm. Unclear. If you hire them when they admit that they deliberately misgender due to their sincere beliefs, when you forever call them by the gender opposite that on their birth certificate can they claim sex or religious discrimination? Possibly.

As you can tell, I have lots of questions about this case and how it will apply to employment law in the future. Questions such as:

• Can a man whose sincere belief says women belong in the home now refuse to work with women?
• Can a woman whose sincere belief says that Black people are under the "Curse of Ham" and are thus inferior pay Black employees less than white ones? (This excuse was used to justify slavery).
• Can an employer whose sincere belief is that women are suited only to secretarial work refuse to hire female truck drivers?

This "sincere belief" stuff cuts both ways.

• Can an employer whose sincere belief is that anyone who voted for Trump is ethically deficient refuse to hire Republicans?
• Can a woman whose sincere belief is that anyone who believes that abortion should not be allowed in cases of rape, incest, and for the health of the mother is unfit to lead anyone refuse to grant a promotion to Catholics?
• Can a man whose sincere belief is that anyone who supports book banning is unfit to teach refuse to hire evangelical teachers?

I think these questions will be answered soon. The answer under the law a year ago is no to all of the above. But now, apparently anything goes. So hold onto your hats and just assume things will get crazy before they settle down.

Right now, employment discrimination is still mostly illegal. But that could change. Be ready.

NLRB Says Employee Outbursts Regarding Working Conditions Are Protected

The Biden NLRB recently overturned a Trump-era case that allowed employers way too much discretion to fire employees who engage in alleged unprofessional behavior when discussing working conditions. The case involved a union activist who was fired. The behavior that resulted in the termination was described by the Administrative Law Judge as follows:

Colone spoke persistently and argumentatively,and made a brusque, impolite statement to an employee who was leaving the meeting that he should “just go ahead and leave” be-cause he wasnot needed; he also, upon Dean refusing to provide him with the paperwork related to the new overtime policy, told Dean that he was not doing his job.

 The NLRB said the harsher standard the GOP Board set was erroneous:

The Board has long held, with uniform judicial approval, that causation is not at issue where an employer defends a disciplinary action based on an employee's alleged misconduct in the course of union activity, and the Board determines that the misconduct was not sufficiently egregious to deprive the employee of the protection of the Act. Everyone agrees that the disciplinary action was motivated by conduct that the Board—in fulfilling its statutory responsibility to determine the scope of the Act's protection—has found to be protected. That the employer labeled the conduct abusive, disloyal, uncivil, or insubordinate does not bring its motive into question. Ozburn-Hessey Logistics, LLC, 366 NLRB No. 177, slip op. at 5 (2018), enfd. in relevant part 803 Fed. Appx. 876, 882-883 (6th Cir. 2020); Roemer Industries, Inc., 362 NLRB 828, 834 fn. 15 (2015) (explaining that where an employer defends disciplinary action based on an employee’s misconduct in the course of protected union activity, and the misconduct was not egregious enough to remove the protections of the Act, “the 8(a)(3) violation is established because the antiunion motive is not in dispute--the protected union conduct was the motive for the discipline”), enfd. 688 Fed. Appx. 340 (6th Cir. 2017). 

 The NLRB cited as an example of conduct that is protected:

A good example is the Eighth Circuit’s picket-line misconduct decision in Cooper Tire & Rubber Co. v. NLRB, 866 F.3d 885 (8th Cir. 2017), a case the General Motors Board simply ignored. In Cooper Tire & Rubber, the court enforced the Board’s order requiring reinstatement of a striker who had directed racist taunts at a van carrying replacement workers that had just crossed the picket line. It agreed with the Board’s application of the Clear Pine Mouldings standard and rejected the employer’s argument that Wright Line should apply. 866 F.3d at 889–890. It also rejected the argument that the Board’s order conflicted with the employer’s duty under Title VII, 42 U.S.C. §§ 2000e, et seq. Id. at 891- 892. The court explained that the striker’s picket-line jibes—racially offensive, stereotyped comments about food —did not create a hostile work environment, nor did Title VII create any legal obligation to fire the striker. Id. at 892.41 The Eighth Circuit’s decision is not anomalous.

The Supreme Court has said repeatedly that Title VII is not “a general civility code for the American workplace.” As the Court has explained, “offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” There is no obvious or inevitable conflict, then, between the Board’s approach as reflected in the setting-specific standards and Federal antidiscrimination law.

I can't tell you how often the "general civility code" language has been thrown at me in sexual and racial harassment cases, so it's good to see the NLRB saying what's good for the goose is good for the gander. You don't want a general civility code? Then you can't claim it when people are protesting or discussing working conditions.

I generally suggest that employees remain professional when discussing working conditions with management and coworkers. But the NLRB has made it much more difficult for employers to fire employees who are advocating for better working conditions. 

See? Elections matter. Vote well in 2024.

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What Rights Do Workers Have During Heavy Wildfire Smoke?

It looks like wildfire smoke is becoming a fact of life for many Americans. What rights do you have if your workplace is in one of the dangerously smoky areas? 

OSHA actually has a web page about wildfires. It says, among other things, “Each employer is responsible for the safety and health of its workers and for providing a safe and healthful workplace for its workers. Employers are required to protect workers from the anticipated hazards associated with the response and recovery operations for wildfires that workers are likely to conduct.”

They have a detailed Response page that includes links to requirements for many types of hazards. That page includes a link to a California publication on smoke.

 That publication discusses what steps can be taken by employers to protect both indoor and outdoor workers. For outdoor workers:

Options for limiting workers’ smoke exposure include postponing or shortening time spent outdoors; focusing on only performing high priority tasks; relocating workers or rescheduling work tasks to smoke-free or less smoky areas or times of the day; reducing outdoor workers’ physical activity and exertion levels; encouraging and ensuring workers take frequent breaks inside cleaner air spaces such as enclosed structures or vehicles with recirculating air; and encouraging and using air cleaners with HEPA (or other protective) filters in indoor working areas to reduce overall smoke exposure. In some cases, the use of particulate respirators should be considered to protect workers who cannot implement the exposure reduction recommendations listed above when performing outdoor work (see additional information below). Workers involved in post-fire cleanup activities clearly must be protected from exposure to ash and all other hazards (see sections pertaining to after-fire hazards) by using a range of control methods (e.g., dust suppression, personal protective equipment). When other measures are not sufficient to control a respiratory hazard, OSHA requires employers to provide respirators that are appropriate for the hazard and work situation. An OSHA-compliant respirator program names a qualified person responsible for administering the program and describes procedures for respirator selection, medical evaluation for safe respirator use, fit testing for tightfitting respirators, training on topics such as how to use and maintain respirators, and program evaluation.

But the publication also states: “The Occupational Safety and Health Administration (OSHA) is the regulatory entity for employee health and safety but, in about half of the states, a federal OSHA-approved state OSHA program regulates non-federal workplaces. There are currently no occupational standards specifically for wildfire smoke, except in California.”

For indoor workers, they state: “HVAC systems should be operated continuously while occupied in order to provide the minimum quantity of outdoor air for ventilation, as required by the standards or building codes to which the building was designed. For many office buildings, this is often in the range of 15–20 cubic feet per minute (cfm) per person, although it could be less in older buildings.” They provide details on what steps need to be taken to inspect and repair HVAC systems to protect from smoke. They provide additional information for protection of indoor workers: “In addition to assessing and if necessary modifying the function of the HVAC system, employers are encouraged to take other reasonable steps to reduce employee exposure to smoke, including alternate work assignments or relocation and telecommuting. Some buildings rely on open windows, doors, and vents for outdoor air, and some may have mechanical ventilation systems that lack a functioning filtration system to remove airborne particles. In these cases, the employees may need to be relocated to a safer location. Employees with asthma, other respiratory diseases, or cardiovascular diseases, should be advised to consult their physician for appropriate measures to minimize health risks. Respirators, such as N95s and other filtering facepiece respirators, may provide additional protection to some employees against environmental smoke. Employees whose work assignments require the use of respirators must be included in a respiratory protection program (including training, medical evaluations, and fit testing).”

New York, where wildfire smoke recently wreaked havoc, does have a Division of Safety and Health as part of their Department of Labor but I’m not finding anything specific relating to smoke hazards. They do have a website here: https://dol.ny.gov/safety-and-health

The bottom line is that it looks like New York and many other states don’t have specific safety standards on outdoor smoke, but they probably should. Employees nationwide are covered by OSHA. Here's what OSHA says generally about workplace safety:

You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.

Most of the OSHA-specific standards regarding smoke involve workplace fires. But employers need to protect employees from hazardous conditions, and that includes wildfire smoke. Employers need to take sensible precautions to protect employees. For employees who have medical conditions that place them at high risk for smoke exposure, they need to consider measures such as remote work, alternate assignments, relocation, respirators, and filters. For indoor employees who aren’t particularly vulnerable, employers still need to protect indoor workers with functional HVAC systems, filtration, PPE if necessary, and relocation or remote work as necessary. For outdoor workers, employers should be providing respirators, frequent breaks into clean air spaces, and any other protective equipment necessary.

If you feel you are being put in unsafe conditions, notify OSHA and ask them to inspect the workplace. OSHA has a page about when you can refuse to perform work. It says:

If you believe working conditions are unsafe or unhealthful, we recommend that you bring the conditions to your employer's attention, if possible.

You may file a complaint with OSHA concerning a hazardous working condition at any time. However, you should not leave the worksite merely because you have filed a complaint. If the condition clearly presents a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, you have brought the condition to the attention of your employer, you may have a legal right to refuse to work in a situation in which you would be exposed to the hazard. (OSHA cannot enforce union contracts that give employees the right to refuse to work.)

Your right to refuse to do a task is protected if all of the following conditions are met:

§  Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so; and

§  You refused to work in "good faith." This means that you must genuinely believe that an imminent danger exists; and

§  A reasonable person would agree that there is a real danger of death or serious injury; and

§  There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

You should take the following steps:

§  Ask your employer to correct the hazard, or to assign other work;

§  Tell your employer that you won't perform the work unless and until the hazard is corrected; and

§  Remain at the worksite until ordered to leave by your employer.

If your employer retaliates against you for refusing to perform the dangerous work, contact OSHA immediately. Complaints of retaliation must be made to OSHA within 30 days of the alleged reprisal. To contact OSHA call 1-800-321-OSHA (6742) and ask to be connected to your closest area office. No form is required to file a discrimination complaint, but you must call OSHA.

In a situation involving wildfire smoke, I would expect that very few situations outside the range of the actual fire rise to the level of presenting a risk of death or serious physical harm unless you have an underlying health condition, so I’d recommend that most workers follow the steps OSHA requires: Bring it to the employer’s attention. If they don’t fix it or provide appropriate protective equipment or otherwise eliminate the danger, file a complaint with OSHA and ask for an inspection. 

Only if the work is so dangerous that you are risking serious physical harm should you refuse to do the work. 

If your employer retaliates for reporting them to OSHA, report the retaliation to OSHA or contact an employee-side employment lawyer in your state.

New Laws Protect Pregnant and Nursing Workers

Two new federal laws that President Biden signed on December 29, 2022 will provide more protection for pregnant and nursing workers. While pregnancy discrimination is already illegal, these laws provide additional protection. 

Pregnant Workers Fairness Act: This law goes into effect on June 27, 2023 and applies to discrimination claims after that date. This law makes clear that employers with at least 15 employees must provide reasonable accommodations to pregnant workers unless providing the accommodation would cause an undue hardship on the employer. This makes pregnancy accommodations similar to disability accommodations, but pregnant workers only have to prove pregnancy, not a disability. The requirement of accommodation is triggered by a "known limitation" of pregnancy. 

This law clarifies the Pregnancy Discrimination Act, which didn't mention accommodations. The Supreme Court held in 2015 that employers must grant accommodations to pregnant employees if they provide such accommodations to other similarly-situated non-pregnant employees. The cases have been all over the place on this, so this new law makes the requirement very clear.

Cases under this law are handled the same way Title VII claims are handled.

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act): This law amends the Fair Labor Standards Act to require employers to provide reasonable break times to all nursing employees, and a private place to express breast milk. This law came into effect on December 29, 2022. Employers with less than 50 employees will be exempt if compliance creates an undue hardship. Employees who work remotely have the same entitlement to breaks as other employees and must be able to do so without being observed by employers. 

The Fair Labor Standards Act already provided for break time and private space for most employees, but this law expands that protection to employees who were considered exempt from overtime and remote workers. 

Breaks are only paid if they are less than 20 minutes or if the worker is not completely relieved from duty during the break. 

Employers who break this law or who retaliate can be liable for lost wages, liquidated damages, compensatory damages, other economic losses, and even punitive damages.

See what happens when you vote well? Keep voting well, and keep fighting for employee rights.

Can My Employer Trash Me In Job References?

I constantly hear comments like, "I know my employer is only legally allowed to give out my dates of employment and job title." The people who say this are so sure this is the law. They're also wrong, wrong, wrong. They even get angry when I tell them they're wrong.

Here are six things you need to know about job references:

1. Not one single federal law exists limiting what employers can say in references. I know you think you're sure about this law existing. You probably heard it from a friend or on TV. There is no such law.
2. No state prohibits employers from giving out truthful information about an employee's job performance. There is not a single state law that I've found (and I'm sure my employment lawyer colleagues around the country will chime in if they know of one) saying that employers can only give out dates of employment and job title. Discussing job performance is allowed.
3. Most states don't require employers to give any reference at all. Some vindictive employers will simply refuse to return calls from prospective employers. Employees who have to undergo background checks may be disqualified from a job just because a former employer refused to speak. While some states require employers to give out specific limited information, most require nothing at all from former employers. This can also be a problem if you need to apply for unemployment or public assistance.
4. Some states require employers to give former employees a letter with specific information (varies from state to state). These states are California, Delaware, Indiana, Kansas, Maine, Minnesota, Missouri, Montana, Nebraska, Nevada, Oklahoma, Texas and Washington. You can check out each state's requirements here.
5. Most states give employers some immunity from slander and libel suits. Each state's immunity is a little different, but employers in most states get a lot of leeway in what they can say about former employees.
6. Truth is always a defense to a slander or libel suit. Even in states without immunity, if your employer gives out truthful information, you won't be able to sue for slander or libel. Truth is a defense. If your employer makes false statements of fact (as opposed to opinion), such as falsely saying you stole money or didn't meet quota, then you might have a defamation case against them.

When you leave, it's important to figure out what your former employer is going to say about you to potential employers before you start interviewing. Here are some things you can do to find out.

Ask: Some employers will tell you, if you ask them, what they will say to potential employers in references. Find out if, for instance, they'll say you're eligible for rehire.

Put it in an agreement: If you're presented with a severance agreement, one important point to negotiate will be neutral references. A contract where the employer agrees to only give out dates of employment and job title can be enforced.

Check the union contract: If you have a union, many collective bargaining agreements include a provision that the employer can only give out dates of employment and job title.

Look at your handbook: Many companies have a neutral reference policy. Some have a phone number or person where you're supposed to direct references. A company with a neutral reference policy will usually follow it. They have it for a reason. If you find out your former supervisor is violating the policy, complain to HR or the supervisor's boss. They may get in trouble, and will almost certainly be ordered to cut it out.

Reference-checking company: There are companies that will pretend to be potential employers and check references for you. They can give you a report about what your former employer is saying. If they're saying something untrue, you may want to get a lawyer to write a cease and desist letter for you. If they're breaching a non-disparagement agreement, you might be able to sue for breach of contract.

If you think your former employer is defaming you, or if they are breaching a non-disparagement agreement that they aren't allowed to say negative things about you, contact an employee-side employment lawyer in your state about your rights.

DOL's New Rule On Classification of Employees Vs. Contractors Will Benefit Workers

 Last year, the Department of Labor announced a new proposed rule about how workers are classified as employees or independent contractors. The comments period has ended, so we can expect the new rule to be implemented any time. 

DOL noted, "As explained below, as used in this proposal, the term “independent contractor” refers to workers who, as a matter of economic reality, are not economically dependent on their employer for work and are in business for themselves." And that is exactly how it should be. Instead, employers are misclassifying employees as contractors to avoid the application of employment laws and to avoid paying employment taxes.

The new rule would actually revert to an older rule that has existed in interpreting the Fair Labor Standards Act. "The ultimate inquiry is whether, as a matter of economic reality, the worker is either economically dependent on the employer for work (and is thus an employee) or is in business for themself (and is thus an independent contractor). To answer this ultimate inquiry of economic dependence, the courts and the Department have historically conducted a totality-of-the-circumstances analysis, considering multiple factors to determine whether a worker is an employee or an independent contractor under the FLSA."

This new rule will benefit workers in several ways:

Greater protection under labor laws: Workers who are classified as employees are entitled to greater protection under labor laws. For example, they are protected by the National Labor Relations Act, which gives employees the right to form and join a union, the Fair Labor Standards Act, which sets the minimum wage and overtime standards, state and federal discrimination laws, and whistleblower laws.

Better pay and benefits: Workers who are classified as employees are typically eligible for a wider range of benefits and may be entitled to a higher minimum wage. For example, employees are typically entitled to overtime pay, paid time off, and health insurance, while independent contractors are not.

Improved working conditions: Workers who are classified as employees are entitled to a safe and healthy workplace. This includes protection from workplace hazards and discrimination. Employers are also required to provide reasonable accommodations for employees with disabilities. Employees can also unionize to negotiate for better working conditions. Contractors cannot.

No double taxation: Independent contractors have to pay double the amount of social security and medicare taxes. Employers pay half of these employment taxes for employees. 

Overall, the Department of Labor's new rule on worker classification benefits workers by providing increased job security, better pay and benefits, improved working conditions, greater protection under labor laws, and clarity for both workers and employers. By ensuring that workers are classified correctly, the rule helps to ensure that workers receive the benefits and protections they deserve.

If you think you are misclassified as a contractor, contact an employee-side employment lawyer in your state. You also can report your employer to the Department of Labor and the IRS. They may additionally be liable under state wage theft laws. 

How Do I Prove I Was Laid Off Due to Age Discrimination?

 Older employees, along with the disabled and pregnant employees, are the most targeted employees in layoffs. There seems to be an assumption that the "old guys" will be retiring soon anyhow so it doesn't matter. It does. Targeting older employees is illegal. 

How do you figure out whether you were selected due to illegal age discrimination? Here are some factors to consider:

• Comments: If your boss makes comments about age, that's direct evidence of discrimination. As an example, referring to older employees as, "geezer," "old man," or "pops," may indicate age discrimination. It can be more subtle. Saying the company wants a "young image," asking questions about your energy level, asking when you intend to retire, or saying you may not be able to keep up with the new changes can all be evidence of age discrimination.
• Different treatment: If you are selected as one of the employees to be laid off but younger, less qualified employees are kept on, then that is also evidence of discrimination. Let's say the position requires a certification. You have it but the younger employee is working to get it. You're more qualified. That is evidence of age discrimination. Seniority can also be a measure of your qualifications. If you've been in the position for 20 years with all good reviews and the younger employee has only held the job for a year, that's a good indication that age discrimination is occurring.
• Different options: If you are told you have to take the severance, where other younger employees are given the option of stepping down to a lower paying position, or transferring to a different department, then that could also be age discrimination. On the issue of stepping down versus taking the severance package, if it's offered to you, that's a decision you need to weigh carefully. If your retirement benefit (assuming you work for the rare company that still has one) is measured by your last year or several years' pay, then you may want to go for the severance package if offered. On the other hand, if you aren't vested in some benefits or can't retire yet and only have a few years left, stepping down may be the best option. This might be a good time to meet with your accountant or a financial planner to discuss the best options for you.
• Disparate discipline: Since the company is looking at disciplinary history, if you are suddenly targeted for discipline for picky things that younger employees also do and aren't disciplined for, then that is another sign that you are being targeted due to your age.
• Check that list: In a layoff employers should attach a list of the job titles and ages of people who were selected for layoff, and those kept on. It might show a pattern of age discrimination.

If you think you're being targeted due to your age, talk to an employment lawyer in your state. Sometimes discrimination can give you leverage to negotiate a better severance package.

Can I Secretly Record A Conversation At Work?

I thought I'd discuss a question today that I'm asked all the time in my law practice: Can I record a conversation with my employer?

Unfortunately, there's no easy answer to this question, and a mistake can land you in jail. Illegal tape recording can have both criminal and civil penalties. My advice is almost always: When in doubt, don't.

Still, many employees want to record a boss or HR at work, and there are good reasons to do so. If you have a sexual harasser, it's handy to catch them red-handed. It's hard to deny something a judge or jury can hear in the harasser's own voice. Some employees want to record meetings with HR to make sure they get all the important information or to have evidence of the reason given for termination or discipline. Other employees want to get evidence of discrimination or other illegal practices of the employer. Sadly, while you can go to jail if you illegally record a conversation, even of a bigot, there is no law making workplace discrimination a crime in the U.S.

Here's what you need to know about recording conversations at work:

All-party consent: Eleven states, California, Connecticut, Florida, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington, require all parties to the conversation to consent to being taped. Illinois' all-party consent law was found to be unconstitutional. Hawaii, a one-party consent state, requires all-party consent if the device is installed in a private place. Massachusetts bans "secret" recordings. These laws are sometimes referred to as "two-party consent" laws, but if there are three people in the conversation, all three must consent. The Digital Media Law Project has a handy state-by-state resource here. The Reporter's Committee for Freedom of the Press has another detailed state-by-state guide here.

Expectation of privacy: You can almost always record conversations in public areas, because the courts say there's no "expectation of privacy" in those places. Whether or not you are a party to the conversation, if it's out there in public, you may be allowed to tape it. Here's where it gets tricky. Many courts have held that there's little or no expectation of privacy in the workplace. There are cases saying, for instance, that a party to a conference call has no expectation of privacy. If you're in a group meeting at work, is there an expectation of privacy? Possibly not.

As an example, cases in my home state of Florida on the expectation of privacy at work say things like: "Society does not recognize an absolute right of privacy in a party's office or place of business." "[A]lthough defendant may have had reasonable expectation of privacy in his private office, that expectation was not one which society was willing to accept as reasonable or willing to protect." "Society is willing to recognize a reasonable expectation of privacy in conversations conducted in a private home. However, this recognition does not necessarily extend to conversations conducted in a business office."

The problem I have with relying on cases like these to tape at work is the use of weasel-words like "necessarily" and "absolute" and "reasonable." These cases are very fact-specific and that means a court could still find that your boss or coworker had an expectation of privacy. If you get it wrong, you can end up in jail. 

If a meeting is held with a large group of employees, doors open so others can hear or wander in, then I feel pretty comfortable that there's no expectation of privacy. Otherwise, I suggest talking to an employment lawyer in your state about making such a recording.

Unfair Labor Practices: The National Labor Relations Board has waffled on whether employers can ban all recordings at work. In 2015, they said no, such recordings can't be banned. Then in 2021 they said sure, employers can ban recordings. This current board would probably say recordings can't be banned. But since the case law changes depending on who appointed board members, I wouldn't risk criminal prosecution based on this.

Retaliation: If you record a conversation to document illegal discrimination or illegal harassment (we're talking harassment or discrimination based on race, age, sex, religion, national origin, disability, pregnancy, or other protected category, not bullying), then you may or may not be protected against retaliation by your employer. The courts have split on this issue. Depending on your state, your employer may be allowed to fire you for recording a conversation at work.

One-Party Consent: If your state is a one-party consent, you still have to be a party to the conversation in order for a recording to be legal. If you aren't, you can't just place a recording device somewhere at work to record secretly. That's illegal in every state.

Phone Calls: The all-party consent states all make recording phone calls without consent of all parties illegal. There's no expectation of privacy exception for phone calls. Fifteen states require all-party consent of phone calls. The one-party consent states that ban such recordings are Delaware, Illinois, Oregon, and Vermont. A state-by-state guide is here.

To summarize, you can probably tape a conversation at work that you're part of as long as you live in one of the 39 one-party consent states. You can also possibly tape a conversation that's in a public area (lobby, office or conference room with doors open, stairwell). You can maybe tape a conversation in the office behind closed doors. Only 35 states allow recording of phone calls with one-party consent. If you get it wrong, you're in big trouble, so be careful.

My best recommendation in all-party consent states continues to be, when in doubt, pull out your recorder and turn it on. Say, on the recording, "You don't mind if I tape this do you?" If the other person or people say they don't mind, keep recording. If anyone objects, turn it off. Pull out a pad of paper and a pen and take good notes instead. No potential case against your employer is worth risking jail time.

How Do I Get A Copy Of My Noncompete Without Alarming Management?

 You don't have a copy of your noncompete and can't figure out how to get one without asking management, who would definitely penalize you just for asking. You want to leave but the only option you think you have would be a competitor. Or you signed a bunch of documents you didn't read when you started called stuff like Confidentiality Agreement or Bonus Agreement and now you think you might have signed a noncompete.

If you’re a regular reader of my blog, you know that I always recommend you get a copy of everything you sign. This is a good example of why. How are you supposed to know what your restrictions are if you don’t have a copy of your agreement?

But you didn’t keep a copy of your noncompete agreement, and now you have to figure out how to get a copy without alarming HR and management. There are several ways you might try. You’ll have to figure out which one works best in your company culture:

Ask to look at your personnel file: While some states have a law saying companies have to give you access to your personnel file, most don’t. There's none here in Florida. Still, sometimes employers will allow you to review your personnel file if you ask. Hopefully, the noncompete will be in there. What excuse do you give for asking? You could say you want to see what deductions you listed on your W-4, review your insurance election, or take a look at your last review as some examples of what might give you a non-alarming excuse to review the file. Of course, they could just be nice and give you a copy of the document you say you’re looking for, so this might backfire.

Ask a coworker for theirs: If you have a coworker you trust who keeps better records than you, you might ask them to share their noncompete agreement. Yours is probably similar, but if you started different years or have different jobs, the two agreements could be quite different. If you’re sure that everyone has the same agreement, this is a possibility that might work for you.

Look at court records: If your employer sues former employees for noncompete violations, then pull the case file. The coworker’s noncompetition agreement should be attached to the very first document, called something like a “Complaint.” This only works if you’re pretty sure the coworker had the same agreement as you.

Ask someone friendly in management: Sometimes, your boss or a friend in HR may be willing to get you a copy on the sly.

Ask for the agreement: I know you don’t want to tell an unfriendly supervisor or the evil HR lady you need a copy, but this is the only straightforward way to get a copy of your actual agreement. You might say you lost your copy and want to make sure you have a copy for your records (and this is completely true) or try to come up with some other excuse. Or, you can wait until you get a job offer and then ask for it. That way, you at least have a place to go if you get fired because they think you’re looking to leave.

What do you do if they refuse to give you a copy? I think it’s silly, but some companies like to hold onto the noncompete agreements employees have signed like they’re the secret recipe to KFC, but I don’t understand this. Companies should want employees to know what their post-employment restrictions are. HR folks should make sure employees keep a copy for themselves. How can they comply if they don’t know what the restrictions are? Nobody has ever been able to explain this to me.

If this happens to you, and you have a job offer or actual plans to start a business, I suggest sending them something like this: “It is my understanding that I do not have any restrictive covenants that would keep me from working for a competitor or forming my own business. If this is incorrect, please send me a copy of any and all agreements I signed or am alleged to have signed while employed by you within 72 hours from the date of this email. If I do not receive the alleged agreements by that time, I will assume I have no restrictions and will govern myself accordingly.” Obviously, this will set off alarm bells like crazy, so I don’t recommend this unless you have somewhere to go.

Sounds like lots of trouble to go through all this, huh? Next time, make sure you keep a copy of anything you sign at work, and make sure you take it home or keep it in your briefcase so they can’t grab it if you are fired. And don’t forget to read it carefully before you sign so you know and understand your post-employment restrictions. The time to negotiate is before you sign.

What Can I Do If I Lost A Job Due To A Background Check?

 If your employer or potential employer is going to run a credit check, then they must comply with the Fair Credit Reporting Act. This requirement covers anything the employer is getting from a consumer reporting agency that covers personal and credit characteristics, character, general reputation, or lifestyle, but not the HR department running your name on Google, checking out your Facebook page, or reading your blog. So it depends on who did the background check.

If they are going to run a background check that is considered to be a credit check, and they are hiring an outside agency to do it, they have to give you a document solely for the purpose of telling you they intend to conduct a credit check. It was possibly shoved in with a stack of papers they handed you with your application or pre-employment forms. They need your permission in writing.

They must also tell you if they’re about to deny a job, reassign, or terminate you because of what was disclosed in a credit report. They must give you written notice with a copy of your credit report and a document called "A Summary of Your Rights Under the Fair Credit Reporting Act.”

Once the employer decides to use the report against you, they must then give another notice, this time telling you the name of the agency that did the credit report, saying the agency isn’t the one that made the adverse decision, and telling you how to dispute the information in the report with the agency. This notice can be verbal or in writing, unless you’re a trucker, in which case it must be written.

If an employer runs your credit history though a third party agency without permission, they’ve broken the law. 

But let's say they run the background check themselves. They check your social media and find out, for instance, your race, that you have a disability, that you have a family history of a genetic disease, or that you're pregnant. They aren't allowed to turn you down for a job or fire you on that basis. That's illegal discrimination, and you might have a discrimination case.

If they find an arrest or conviction record, then there are some states that don't allow them to use this against you. Florida is not one of those states. EEOC has taken the position that a blanket refusal to hire based on criminal records can be discrimination, but I haven't seen any cases supporting such a claim. If you are, for instance, male and a female with the same record is not excluded but you are, that could certainly be a discrimination claim.

If they find out you sued a prior employer for discrimination and refuse to hire you on that basis, that could be illegal retaliation and you might have a claim for violation of anti-discrimination laws.

If you think any of this applies, contact an employee-side employment lawyer in your state for advice on how to proceed.

How Do I Prove Sexual Harassment?

In my 36 years of experience representing employees I’ve found that retaliation seems to be the norm rather than the exception when it comes to sexual harassment. Women (and men) are justifiably afraid to report sexual harassment. Still, sexual harassment is not about sex. It’s about power. If you don’t speak up about a sexual harasser, he or she will keep doing it and accelerate their behavior, as we've seen in some of the big celebrity cases that have come out during Me Too.

Usually, a single incident doesn’t equal a lawsuit unless it's really severe. For it to be sexual harassment under the law, the harassment must be so severe or so pervasive* that it alters the terms and conditions of your employment. Still, you aren’t helpless when it comes to sexual harassment. You can fight a sexual harasser and win. No doubt, proving sexual harassment can be difficult, because it is usually your word against the harasser’s. Still, you shouldn’t just continue to be sexually harassed without taking action. Here are some steps you can take if you’re the victim of sexual harassment at work:

Document any quid pro quo: One type of harassment is called quid pro quo sexual harassment. That’s where you are offered a job, promotion or favors if you submit to the harasser, or are threatened that you’ll be demoted, fired or disciplined if you don’t submit. If any offers or threats are being made, write down the date, time, place and any witnesses. Don’t worry if there are no witnesses. Harassers are usually too smart to do it in front of others. Your testimony is evidence. Your notes are evidence.

Document any comments and different treatment: The other type of sexual harassment is called hostile environment. That’s where you’re being harassed due to your gender. This could be comments about your gender being inferior, sexual comments, or treating people of your gender differently than the opposite sex. If the harasser is making comments or treating you differently, they may also be targeting others of your sex. Watch carefully and take good notes. Again, include date, time, place and any witnesses. If it’s just you, then still document it.

Keep your notes in a safe place: Don’t put your notes on your work computer, in a desk drawer or somewhere where the employer can take them. Keep them in your jacket pocket, purse or briefcase, or write them on your home computer. If you’re fired, they’ll prevent you from taking your notes and they may be conveniently “lost.”

Gather evidence: If the harasser is texting, emailing or sending cards or notes, keep copies. Don’t delete them. Make sure you take a screen shot of any texts and print them so you don’t lose them if your device crashes or you buy a new one. Print emails and keep them in a safe place.

Report it: You should report the sexual harassment. Make sure you’ve followed the company sexual harassment policy and reported it to the correct person. They should have alternate people to report it to in case one of them is your harasser. I suggest reporting it in writing. If you’ve only reported it verbally, follow up in writing. Something like, “This will confirm our conversation on April 15, 2023 in which I reported sexual harassment by my supervisor John Doe. I reported the following instances of sexual harassment to you: [list them]. Please take prompt action to investigate this matter and address this situation."

File with EEOC: If you’ve already reported it and they won’t take action, and your employer has at least 15 employees, then filing with the United States Equal Employment Opportunity Commission is the next step. Filing with them is a prerequisite to filing a lawsuit for sexual harassment. Depending on your state, you have 180 or 300 days from the date of discrimination to file. You are protected from retaliation if you file a charge of discrimination with EEOC. That isn’t so say they won’t still retaliate, but if they do you can report the retaliation to EEOC and possibly sue. If your employer is too small for EEOC, some states and local governments cover smaller employers. Here in Florida, Miami-Dade, Broward, Orange, Lee, Pinellas, Hillsborough, and Palm Beach counties cover employers with 5 or more employees. You would file with the agency that covers the smaller employer in that case.

 Contact a lawyer: Contact an employment lawyer in your state who understands sexual harassment and that it is frequently your word against the harasser’s.

Get the heck out: In the meantime, if the company won’t do anything and you don’t feel safe, start looking for another job. Don’t let the harasser bully you out of a job before you’re ready, but don’t feel trapped either. Sometimes a sexual harasser will work on your head and make you feel like nobody else would want you. Don’t believe them.

Remember, sexual harassers are like rapists. It isn’t about sex – it’s about power. If nobody stops them, their behavior accelerates. If you don’t report it, there will be other victims, and the behavior will get worse. Stand up for your right to a safe workplace. Your employer has a duty to keep your workplace free of sexual harassment. It’s the law.

*Yes management side - that's an "or" not an "and" so stop saying "and" because that's just stupid. "And" would mean that the victim had to, for instance, be sexually assaulted on the reception desk by their supervisor in front of coworkers multiple times in order for it to be sexual harassment, and surely you aren't going to try to argue that one. One severe incident is enough. Multiple less severe incidents count too.