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, March 30, 2023

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.

Thursday, March 23, 2023

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.

Thursday, March 16, 2023

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.

Thursday, March 9, 2023

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.

Thursday, March 2, 2023

NLRB Makes Employers Liable For Damages For Direct and Foreseeable Harms

The National Labor Relations Board (NLRB) recently ruled that employers are liable for compensatory damages in unfair labor practices case. This means employers are now liable for direct and foreseeable harms if they break the law.  Previously, employees could only recover the loss of earnings and benefits. Now, victims of unfair labor practices may recover for other financial costs, such as out-of-pocket medical expenses, credit card debt, or other costs that are a direct or foreseeable result of the unfair labor practices. 

This new rule about compensatory damages for unfair labor practices benefits workers in several ways:

1. Increased compensation: Now workers who have been affected by unfair labor practices can receive full financial compensation to help make up for their losses. Lost wages and benefits are frequently just the beginning of the losses employees incur when employers break the law.

2. Incentive for employers to comply with labor laws: The new rule provides an incentive for employers to comply with the National Labor Relations Act. This can help to deter employers from engaging in such practices, which can benefit workers by creating a more positive and equitable workplace, or at least a place where they are not punished for getting together with coworkers to discuss working conditions.

3. Recognition of the harm caused by unfair labor practices: The new rule recognizes that unfair labor practices can cause severe harm to workers beyond lost wages and benefits, and it provides a mechanism for compensating workers for that harm. This recognition is important because it helps to validate the experiences of workers who have been affected by such practices and it helps to ensure that workers are made whole for their losses.

4. Encourages workers to report unfair labor practices: The new rule can encourage workers to report unfair labor practices, because they know that they may be entitled to compensatory damages if they are affected. This can help to increase awareness of such practices and to ensure that they are addressed, which can benefit workers by creating a safer and more equitable workplace.

5. Promotes fairness in the workplace: The new rule promotes fairness in the workplace by ensuring that workers who are affected by unfair labor practices are compensated for their losses. This can help to create a more just and equitable workplace. Employees are entitled to engage in action with coworkers to discuss working conditions and bring their concerns to managment. Employers will hopefully become more aware that there will be costly consequences of retaliating against employees who do so.

If you think your employer has violated the National Labor Relations Act, contact an employee-side employment attorney in your state to discuss your rights. If you have a union and you think your employer has violated the law, talk to your union leadership about bringing an unfair labor practices claim.

Overall, the National Labor Relations Board's new rule about compensatory damages for unfair labor practices benefits workers by increasing compensation, providing an incentive for employers to comply with labor laws, recognizing the harm caused by unfair labor practices, encouraging workers to report such practices, and promoting fairness in the workplace. By providing workers with greater protections and increased compensation, the new rule helps to create a more positive and equitable workplace for all.