EEOC Posts Guidelines On Harassment

 I can't tell you how many times per week I have to tell people that harassment is not generally illegal. Bullying, general harassment because you're you, just being mean, are not illegal. If they were, I'd be a billionaire.

But some kinds of harassment are illegal. EEOC has posted guidelinesposted guidelines on what kinds of discriminatory harassment are illegal. Here are some key provisions:

Types of harassment: "All laws enforced by the EEOC prohibit workplace harassment that is based on a protected characteristic. The protected characteristics covered by the laws the EEOC enforces are race, color, religion, sex (including sexual orientation; gender identity; and pregnancy, childbirth, or related medical conditions), national origin, disability, age (40 or older), and genetic information (including family medical history)."

When is harassment illegal: "To violate the law, harassment based on a protected characteristic must either:involve a change to the victim’s employment (e.g., an employee is fired, demoted, denied a promotion or transfer, reassigned, or receives reduced hours or pay because the employee rejected a supervisor’s sexual advances); or create a “hostile work environment”"

Examples of illegal harassment: EEOC gives these examples:

• saying or writing an ethnic, racial, or sex-based slur;
• forwarding an offensive or derogatory “joke” email;
• displaying offensive material (such as a noose, swastika, or other hate symbols, or offensive cartoons, photographs, or graffiti); threatening or intimidating a person because of the person’s religious beliefs or lack of religious beliefs;
• sharing pornography or sexually demeaning depictions of people, including AI-generated and deepfake images and videos;
• making comments based on stereotypes about older workers;
• mimicking a person’s disability;
• mocking a person’s accent;
• making fun of a person’s religious garments, jewelry, or displays;
• asking intrusive questions about a person’s sexual orientation, gender identity, gender transition, or intimate body parts;
• groping, touching, or otherwise physically assaulting a person;
• making sexualized gestures or comments, even when this behavior is not motivated by a desire to have sex with the victim; and
• threatening a person’s job or offering preferential treatment in exchange for sexual favors.

I would add that bullies tend to pick on the weak and the different. Who's weak? Pregnant, disabled, and older employees. Who's different? Race, sex, national origin, color, religion, etc. So look at who the bully is targeting and you might find that they are indeed engaging in illegal harassment. 

Do they have to get it right?: No. If the employer assumes you are Muslim, Black, or have some other protected characteristic and are harassing you because of it, that's illegal

Association: If you're being harassed due to your association with someone with a protected characteristic, such as being married to a Hispanic or a person with a disability, that's illegal.

What is a hostile environment: It isn't easy to prove, but EEOC offers this:

A “hostile work environment” exists when harassment is so severe or frequent (called “pervasive” in the law) that a reasonable person in the employee’s position would find the situation to be abusive.

Each claim must be considered on a case-by-case basis and take into consideration all of the circumstances. Some general guidelines to consider include:

• A victim does not need to show that harassment was both severe and frequent – just one or the other.* Sometimes, the more severe the harassment, the less frequent it must be, and vice versa.
• One instance of very serious misconduct may be severe enough. For example, one instance of somebody touching an intimate body part, acting violently, or a supervisor using the n-word can be enough to violate the law.
• The harasser’s status at the employing organization can be important. Harassment by the company’s owner or the victim’s supervisor can sometimes carry more weight than similar behavior by a coworker or customer.
• The victim does not need to show that the harassment led to a change in employment, such as a demotion, reduction of hours or rate of pay, or denial of a promotion. Similarly, the complainant does not need to show that the harassment made them perform worse.

*I'm emphasizing this because management-side lawyers like to argue that it must be both severe and pervasive. That's obviously not the law but it needs to be said. Over and over. SMH

What must employers do: Employers are responsible for preventing and for quickly ending harassing behavior once they learn about it , even if the harassment has not yet been severe enough or frequent enough to create a hostile work environment. But they have to know about it, so report it! EEOC offers this: "An employer typically learns about potential harassment when:Somebody complains. The person who complains does not need to be the victim.

• An owner, manager, or supervisor witnesses the harassing conduct.
• The harassing conduct is so open and obvious that an owner, manager, or supervisor reasonably should have known what was happening."

These are just a few of the key points raised in this new guidance. It might help if you think you are being subjected to illegal harassment. When in doubt, talk to an employee-side employment lawyer in your state employee-side employment lawyer in your state about your rights.

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. 

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

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

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

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

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

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

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

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

10 Workplace Rights You Think you Have – But Still Don’t

So I received this email:

Ms. Ballman; 

I happened to come across your article from 2011 regarding 10 Workplace Rights You Think you Have – But Don’t. As both an attorney and a HR/Payroll consultant, your article is either outdated, specific to Florida, or just completely inaccurate. I would urge you to do your research and correct the artcle. If you would be open to discuss the areas of your article that inaccurate, I’d love to provide your details, however, I’m not going to waste my time (or yours) if you don’t care. As it stands, your article provides incorrect information and extreme disservice to employees in general. 

Best Regards,
(name omitted)

First of all, wow, how rude! Is that any way to approach someone you've never met? Yikes! It was so bizarre I thought I was being attacked by a Russian bot or something. Still, I decided to take it seriously. My initial reaction was that a 7-year-old article might well be out of date. So I reviewed it and, sure enough, it's still both accurate and timely. When I asked my emailer for specifics on what they found to be incorrect, their response was, "I’ll just let you look like you don’t know what you are talking  about, since it’s obvious you don’t care." Well, I do care, even though I'm still not sure whether I'm dealing with a Russian bot.

Anyhow, bot or not, I'm posting an updated version.

As an employment lawyer who has represented employees for 32 years, I find that everyone thinks they already know their rights. After years of watching legal dramas and courtroom reality TV, Americans have absorbed lots of legal information. Unfortunately, most of it is wrong. Before you mouth off to your boss about your rights, I thought I'd share with you the top 10 laws most employees think exist- that don't.

1. Wrongful Termination

Most American workers think employers must have a reason to fire you. Surely your employer can’t just be arbitrary and unfair. Surely they can’t just wake up in a bad mood and fire you because they didn’t like your shirt. And there’s the rub. Because, in every state but Montana, your employer can fire you for any reason or no reason at all unless you have a contract saying otherwise. In most states, they don’t even have to give a reason.

But that’s not right, you say. There’s a law against wrongful termination. There must be. Well, there should be, but there isn’t. What we have instead, in 49 states, is at-will employment. At-will employment is that nasty doctrine that says employers can fire at-will, for any reason or for no reason.

Oh, sure, most states recognize some exceptions to the at-will doctrine (my home state of Florida recognizes zero exceptions). Most states find that a termination that is against public policy, such as being fired for refusing to violate a law, reporting a legal violation, doing something in the public interest like jury duty, or exercising a legal right like making a worker’s compensation claim, is unlawful. Another exception a majority of states recognize is an implied contract, which sometimes allows a court to find that a handbook or employer policy is a legal contract. A few states hold that employers owe employees an implied covenant of good faith and fair dealing, but most let employers be as arbitrary as they want to be.

Other protections employees have in the 49 at-will states are: contracts, whether individual or union, saying they can only be fired for cause; discrimination laws; whistleblower laws; the Family and Medical Leave Act; and state and federal employment laws.

But my point is this: if a majority of Americans think employers must have good cause to fire you, why isn’t there a law? Why haven’t legislators who are supposed to represent workers’ interests passed the number one legal protection employees think they have? Legislatures could pass a law like Montana’s Wrongful Discharge From Employment Act of 1987, which lets employees terminated without good cause sue for up to 4 years of lost wages.

We, as taxpayers, are footing the bill for employers who make arbitrary employment decisions. Why not make employers who fire employees without just cause pay for their arbitrariness? Why not at least penalize arbitrary employers through the unemployment compensation system. Why not lift the maximum rate employers can be charged to these arbitrary employers? Why skew the system to punish employees but not employers?

By continuing to allow arbitrary firings without consequences to employers, we end up forcing the unemployed onto food stamps, welfare, and other taxpayer-supported benefits. And small business owners like me end up paying for these arbitrary employers by having higher unemployment compensation tax rates.

2. Right To See Your File

You probably don't have this right, so don't go stomping into HR and making demands. No federal law requires private employers to allow employees to inspect or copy their own personnel files. Only some states require employers to allow you to look at your file and even fewer require your employer to allow you to copy items in your file. Many times, the only way you'll find out what's in your file is if you sue and you get it with a Request for Production, or if you subpoena it in unemployment or other proceedings.

3. Breaks

No federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it's not a majority. No federal law even requires bathroom breaks, but it's probably a health issue, so OSHA might protect you if your employer denies bathroom breaks. If you're a nursing mother, you're entitled to an unpaid break to express breast milk. Some states also offer protection for nursing moms taking breaks. Lots of people get fired for insisting on breaks they're not entitled to. Don't do it.

4. Hostile Environment

A hostile environment is not illegal. Workplace harassment is not illegal. Bullying is not illegal in any state except, oddly enough, Tennessee, and that's only for government employees. If you write a long email to HR or your boss complaining that you are being "harassed," or, you're "in a hostile work environment," you aren't protected against retaliation. While harassment due to race, age, sex, national origin, religion, disability, or another legally-protected category is illegal, just plain "harassment" is not. So reporting it that way doesn't protect you against retaliation. When I ask why people didn't report that they were being treated differently than coworkers of a different race, sex, etc. they usually say something like, "I didn't want to go there." Well, if you'd gone there, firing you for your complaint would have been illegal. But firing you for saying you were harassed or bullied: not illegal.

Appropriate remedies may be to discipline or warn the harasser, to move the harasser, under some circumstances to move the victim, to do training, or in extreme cases, to terminate the harasser. But they don’t have to take any action at all. They only have a duty to maintain a safe workplace. You might still have to work with the harasser. Don't say you refuse to work with the harasser. You might be fired for refusing to work. If you return and are retaliated against or continue to be harassed, report it again.  If the employer allows retaliation or continued harassment, that is the time to get an attorney involved.

5. First Amendment In Private Workplaces

Only government employees have free speech protections, and those are very limited. Otherwise, you can be fired in most states for your speech (including political speech) in the workplace or outside the workplace. You can't be fired for speaking on behalf of coworkers in order to improve work conditions or for objecting to something illegal, but be very careful to make sure you're protected before you speak out.

If you're complaining about working conditions, reporting discrimination, objecting to not being paid overtime, or reporting illegal activity, you are likely legally protected in every state. 

In some states, employee speech about politics is protected. In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people." California, Colorado, New York, North Dakota and Louisiana say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. Here in Broward County, it's illegal to fire employees based upon political affiliation. If you work for government, there's the good old First Amendment to protect you. Plus, the Civil Service Reform Act of 1978 prohibits political affiliation/activity discrimination against federal employees. 

Speech about religion, women’s (or men’s) rights, and unionization is almost always protected.

Otherwise, you don't have free speech rights at work. Be very sure you have legal protection before speaking out.

6. Privacy At Work

Your boss can read your work e-mails and monitor your Internet usage at work. If your employer is going to listen into or record phone calls, there are some legal restrictions. You also have privacy rights in your medical information. There is no federal law protecting your social security number, but California, Texas and New York do offer limited protection against employers displaying your number.

The Electronic Communications Privacy Act of 1986 specifically says your company can't intercept your emails. The problem is, it has exceptions for consent. That means if your company has a policy on email interception or had you sign an agreement, a handbook, or anything else they managed to slip in front of you agreeing that email at work belongs to them, they skate. The law also says it's legal to monitor your email if the company is the email provider or if they monitor your email in the ordinary course of business, such as for customer service.

In other words, there are so many loopholes that your company probably fits into one. Until the courts say otherwise or Congress tightens this law, it likely doesn't help you.

Some states have a tort called "intrusion on seclusion" or "invasion of privacy." There are some protections against highly offensive conduct that's intrusive. The problem is, you probably won't be able to prove you had any expectation of privacy in your emails or other activities at work.

7. Right To Work

I hear all the time, "But this is a right to work state!" Usually while I'm reviewing a non-compete agreement. Right to work doesn't mean your employer can't restrict your ability to work for competitors after you leave. What it means is they can't make you join a union in order to work there. Some states, but not all, are right to work states. If your supervisor tells you that signing a non-compete agreement is meaningless or that it won't be enforced, they are lying to you.

8. Retaliation

There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or the fact that your boss is a jerk. If you do something that puts you in a legally protected category, you may be protected from retaliation. Examples would be objecting to discrimination, making a worker's comp claim, or taking Family and Medical Leave. If you're reporting something illegal the company is doing, you may be a protected whistleblower, but you'd better research the specific whistleblower laws that apply, because there are many hoops to jump through on some whistleblower cases.

If you complained about working conditions on behalf of yourself and coworkers, you may be protected against retaliation under the The National Labor Relations Act (NLRA), which protects employees who engage in concerted activity to improve working conditions.

For more about when retaliation may be illegal, check out my post on that topic.

9. Discrimination Because Your Boss Doesn't Like You

If your boss is discriminating against you for being you, that isn't illegal. Favoritism, nepotism, and being obnoxious are generally not illegal. Discrimination based on age, pregnancy, race, sex, religion, national origin, disability, color and genetic information are illegal. In some states, other categories such as sexual orientation, gender identity, marital status, and being a domestic violence victim are protected.

10. Suing the Boss

As much as it may be satisfying to sue your ex-boss personally, you probably can't. Federal and many state discrimination laws, Family and Medical Leave Act (in some states the courts disagree on this), and most other employment laws simply don't allow it. One major exception is wage and hour violations. Some state discrimination laws do hold supervisors liable for violations. But what's the point? Unless they're rich, you probably won't be able to collect anyhow.
Well that's wrong. What can I do about it?

Since most people think these laws exist, maybe it's probably high time for them to actually be passed. E-mail your congressperson and state representative now and complain if you don't like the fact that you're not protected. Here's how to find out how to contact your representative in Congress:
https://www.commoncause.org/find-your-representative

Here's a website with contact information for elected officials at the state and federal level:
http://www.usa.gov/Contact/Elected.shtml

You do have rights. Among them is the right to vote. If you don't like the law, exercise it and tell your representatives you demand some legal protections. In the meantime, don't get yourself fired by getting your legal advice from television. When in doubt, contact an employment lawyer in your state about your legal rights at work.

Dear Employees and Job-Seekers: Stop Making These Career-Killing Mistakes

As someone who has handled employee-side employment law for many years, I run into the same frustrating mistakes over and over again. I thought I'd touch on a few that are common so that maybe I can stop you (or a friend or family member) from destroying their career.

Here are the most common career-killing mistakes I see in my practice:

1. Complaining about harassment: This is really the number one problem I see. If you write a long email to HR or your boss complaining that you are being "harassed," you aren't protected against retaliation. While harassment due to race, age, sex, national origin, religion, disability, or another legally-protected category is illegal, just plain "harassment" is not. So reporting it that way doesn't protect you against retaliation. When I ask why people didn't report that they were being treated differently than coworkers of a different race, sex, etc. they usually say something like, "I didn't want to go there." Well, if you'd gone there, firing you for your complaint would have been illegal. But firing you for saying you were harassed or bullied: not illegal.
2. Disclosing pregnancy or disability during interviews or applications: So many people think they have to disclose a pregnancy or disability right up front when they're job hunting. And I know many misguided TV shows portray failing to do so as somehow dishonest. But disclosing pregnancy or disability before you get a job offer mostly means the offer will never happen. You need to disclose after you get the offer, and only if you need accommodations such as time off for doctor's appointments. If the job offer is withdrawn after you seek accommodations, you might have a discrimination case.
3. Failing to put in for intermittent Family and Medical Leave: If you have worked at least a year and your employer has at least 50 employees, odds are you qualify for FMLA. If you need periodic time off for doctor's appointments, to care for a family member, to adjust your medications, or other medical reasons, then put in for intermittent FMLA. That way, you are legally protected against having those absences, latenesses, or leaving early held against you. I'm not sure why many employees are so hesitant to put in for FMLA when they or a family member have a serious medical condition. FMLA is there to protect you. Use it.
4. Failing to report sexual harassment in writing: If the boss or a coworker is hitting on you, making inappropriate comments or touching you, report it under the company's sexual harassment policy, but do so in writing. Otherwise, I find that HR will almost always denied that you made any legally protected complaint. They'll claim you complained about unfair treatment or harassment or bullying but never mentioned that it was sexual harassment. 
5. Failing to get out of a toxic environment: If you have a workplace that is making you physically or mentally ill due to bullying or other toxic conditions, get the heck out of there. But do it on your own time. Start looking and keep working. The mere act of job hunting will frequently make the terrible job more bearable.
6. Quitting without having a job lined up: If you let a sexual harasser or workplace bully run you out of a job before you have something lined up, they win. You're letting them put you in an even worse situation. When people tell me the workplace is too stressful and they have to get out, I ask them if they will be more stressed staying in the workplace or whether they will be more stressed being unemployed for 6 months or a year. It's way easier to get a job if you have a job. If you're in physical danger, then get out no matter what. Otherwise, unless you have enough savings to last at least a year while you're job hunting, try to stick out the bad situation while you're looking. Having a large resume gap is often a career killer. Oh, and nobody can actually force you to resign.

Hopefully I've just stopped you from making one of these career-killing mistakes. Tell a friend or a family member. Spread the word.

More Pro-Employee Bills To Watch In The Florida Legislature

To their credit, some Florida legislators are doing their darndest to try to fix Florida's anti-employee legal climate. I wrote about some pro-employee bills filed, and now there are some more to keep an eye on this legislative session:

Banning employer fraud: A bill proposed would make it illegal for an employer to procure an employee's services fraudulently, and also beefs up anti-retaliation provisions for employees who complain about unpaid wages.

Pregnancy discrimination: Two identical bills would add pregnancy to the protected classes under the Florida Civil Rights Act. I'm not sure why this is being done in light of the Florida Supreme Court's ruling last year that pregnancy is already protected.

Overtime: Another bill changing Florida's overtime pay law from 10 hours per day to 8 was withdrawn, but this new bill replaces it.

Bullying: A second bill that would ban workplace bullying has been filed.

Unemployment: A bill that would modify unemployment qualifications is a mixed bag. It would protect victims of domestic violence but also would disqualify disabled employees who turn down a reasonable accommodation offered. Disabled employees will now face a trial over their discrimination claims in the unemployment proceeding if this bill passes. Overall, I think it's more anti-employee than pro-employee.

I'll be keeping an eye on these bills during the session. Wanna bet that zero pro-employee bills will pass? I won't hold my breath that this legislature or governor would do anything to help the majority of its working citizens.

Employment Law Bills Pending In The Florida Legislature

Since I've been writing about states that have pro-employee laws, and complaining about the lack of protections for employees in Florida law, I thought you'd like to hear about some legislation that has been filed in the Florida legislature for the upcoming session. Will any of it pass? Doubtful. Still, now might be a good time to contact your representatives and state senators to support some of these laws:

Intern Sexual Harassment: Rep. Joseph Geller has proposed a law expanding the Florida Civil Rights Act to include unpaid interns. Why? Because we currently have no laws in Florida prohibiting sexual harassment of interns. Who will come out in favor of sexual harassment of our teenagers? Stay tuned.

Florida Overtime Act: This proposed law revises the number of hours of labor that is a full legal day's work from 10 to 8; revises rates of overtime compensation; provides that commuting to and from certain locations is not part of a day's work; prohibits an employer from requiring employee to continue working after punching out; prohibits employers from paying an employee for less than the amount of contracted hours worked by the employee; and provides penalties for violations.

Fair Pay: The Helen Gordon Davis Fair Pay Protection Act would condemn gender-based pay disparity and have the Department of Economic Opportunity and the Florida Commission on Human Relations do research and disseminate information about unequal pay. No remedies for victims, but it could help prove that disparities exist and spread the word about what legal protections women have.

Minimum Wage: A law increasing the state's minimum wage to $10.10 probably doesn't have a snowball's chance.

Social Media Privacy: Right now, Florida employers can get away with demanding employee social media passwords. A law prohibiting this kind of invasion of privacy would make it illegal for employers to demand user names and passwords for personal social media accounts of employees and prospective employees.

Bullying: The Safe Environment Work Act would make employers liable for allowing an abusive work environment to exist. Will Florida join Tennessee in banning workplace bullies? Not likely.

Ban The Box: With this law, Florida would join the many states that ban employers from making prospective employees disclose their criminal history on an employment application. So far 13 states have passed ban-the-box laws.

LGBT Discrimination: One law that might pass, mainly because lots of Florida employers have come out in favor of it and it has bipartisan support, is the law proposing to add sexual orientation and gender identity to the categories of prohibited discrimination under the Florida Civil Rights Act.

Although it isn't specifically related to employment law, there's yet another attempt to pass the Equal Rights Amendment in Florida. The ERA was the first campaign I worked on when I moved here in 1981, and I thought it was a no-brainer. Here we are, 33 years later, with no ERA. Will it pass? No.

9 Things Every Teen Should Know About Workplace Rights

If you're in high school or college, odds are you're looking for a summer job or internship. Maybe you're even working during the school year. Of course, your school gave you detailed preparation on what your legal rights are when you work. Right? Ha. Not a chance. Schools do roughly zip to prepare teens for the real world workplace. You have to figure this stuff out on your own.

Well, I'm here to help. I wrote last week about sexual harassment, but there's more you need to know. If you're new to the workplace or getting ready to apply for an internship, this is the article for you.

If you are the parent, relative, guardian or friend of a teen who is about to enter the workforce, do them a favor and print, tweet, email (do teens email?), text, Instagram or Pinterest this to them. (You can probably forget about Facebooking it to them since they all fled when their parents got on Facebook.)

Read my article 9 Things Every Teen Should Know About Workplace Rights to find out what your high school or college probably didn't teach you about workplace rights.

Does Zero Tolerance For Bullying In Schools Impact the Workplace?

We have an entire generation emerging from schools that had zero tolerance for bullying, and I think we're already seeing the effects. I have some hypotheses on how zero tolerance in schools is changing the American workplace. Here are some of my thoughts. Do you agree with me?

Cocky nerd: With no bullies to suppress nerds, we're seeing the advent of the cocky nerd. Nerds used to be shy and hardly emerge into the light, but now they can be the most popular kids at school. I see a lot of cocky nerds emerging in music, and I think they're showing up everywhere. This is probably a good thing. If smart kids thrive, then everyone benefits when they come up with the cure for cancer, the personal helicopter I've always dreamed of, or a way to colonize Mars.

Lazy smart people: I was talking to my office manager about the disconnect between the younger generation and mine in the workplace. One of the big complaints I hear pretty universally is that the best and brightest grads can be downright lazy. They want to put in their hours, not work too hard, and go home at 5. My theory on this is that bullies in school made my generation's smart kids feel like they had something to prove. They'd become billionaires or cure heart disease and show everyone at the next reunion. Bwahahaha! Fast forward. This generation of smart kids were the cream of the crop in their schools and they were treated like gold. They won student elections, ran the clubs, and even became cheerleaders and captained the football team. They have nothing to prove. They're kinder and gentler, sure, but where's the motivation, the willingness to work late and put in that extra mile? Do bullies serve a purpose in society after all? What other explanation is there for some of the workplace behavior I see reported by frustrated HR people and supervisors? Where's the joy in working hard to accomplish a task exceptionally well?

Culture shock: With bullying alive and well in the workplace, we have a generation that is utterly unprepared to deal with workplace bullies. They think they can tell HR and everything will be taken care of, like dropping the anonymous bullying complaint in the middle school office. Ha! What a rude surprise they're getting. When this generation grabs some power in the workplace and the legislatures, bullying will disappear from the workplace too.

I think the trick here will to be for my generation and Gen X to figure out how to motivate the millennials (without bullying, obviously). I'm not sure what the answer is. These are obviously gross generalizations and purely untested hypotheses, but I think we'll have some unexpected effects when the zero tolerance generation takes over.

Bullies need to be eliminated in workplaces as well as schools. I think it's overall an improvement that this generation is a bully-free zone. Will they figure out how to end wars? Will they shun bullies instead of rewarding them? Or will they bask in the glory days when they were kings and queens of the school and wonder why they are getting poor performance reviews from the mean old boss?

So, do you think I may be right? Any other theories on how anti-bullying laws for schools will impact the workplace? I'd love to hear what you think.

Call Me Prescient: How My 2013 Employment Law Predictions Fared

If you are a regular reader, you'll recall that I made predictions at the beginning of 2013 about what I thought we could expect. How did I do? Call me Cassandra.

Here's what I said would happen, and what really did:

1. Even More Active NLRB: Look for stepped up activity against employers on social media restrictions, attempts to suppress worker concerted activities and lopsided agreements. NLRB will do what other government agencies have punted on: help employees.

Sure enough, NLRB didn't disappoint. They were up to full strength by the middle of  the year. They continued to press for employee rights in non-union workplaces. They struck down some overbroad social media policies and policies on confidentiality of investigations. They rolled out an app to inform employees in union and non-union workplaces about their rights. It wasn't all pro-employee. NLRB upheld several Facebook firings. See also here and here for some of 2013's social media cases.

2. EEOC Will Start Stepping Up Not to be outdone by NLRB, EEOC will become more active as well. This year saw the beginnings of activity to address gay rights and retaliatory confidentiality agreements. Look for more activity that actually helps employees, and for an agency that no longer accepts employer position statements as gospel.

EEOC tried to step up with the issuance of a guidance and then a clarification to its guidance on criminal background checks, but was repeatedly shot down in the courts. Let's hope they don't give up on this important issue, which definitely has a disparate impact on minorities. EEOC also stepped up its enforcement of Title VII regarding LGBT employees under the theory of "sexual stereotyping." They also cracked down on overbroad agreements that limit employees' ability to file with EEOC. I still see a tendency to accept employer position statements as gospel, at least here in Florida, but there's definite progress. Baby steps.

3. Marijuana Litigation With flat-out legalization in two states and legal medical marijuana in many more, we’ll start to see litigation on the employment-protection provisions built into many of these new state statutes. The fact that it’s still illegal under federal law will make things complicated. Will the feds finally give up and recognize state’s rights? Probably not this year, but definitely within the next 5 years.

Sure enough, the litigation has begun. See also here and here. Still nothing on the federal front to recognize states' rights, but it's only a matter of time.

4. Gay Rights Expansion Speaking of states’ rights, with gay marriage spreading across the country, the feds can’t be far behind. We probably won’t see Congress adding sexual orientation to Title VII or gay spouses to FMLA this year, but I think it’s going to happen this Presidential term.

Wow! What a year for gay rights. The Defense of Marriage Act was stricken down, which led to the Feds deciding that FMLA and EBSA do protect gay couples in states that legalized gay marriage. While there was no legislation passed to amend Title VII or FMLA, ENDA did pass the Senate (although it is stalled indefinitely in the House).

5. Strikes All of a sudden, workers are waking up. They’ve realized they don’t have to put up with crappy working conditions in silence. We’ll see more non-unionized workforces going on strike. We’ll also see some Wal-Mart and fast food corporations retaliating for the strikes that have happened last year and which will continue in 2013. Fortunately, I think NLRB will take action to slap employers for illegal retaliation.

2013 saw more fast food strikes and Wal-Mart strikes.  As predicted, Wal-Mart retaliated and NLRB slapped them.

6. Federal Courts Become (Slightly) Less Anti-Employee While federal courts have long been a sad place for employees, especially here in the 11th Circuit, some recent cases indicate that the times may be changing. Look for some rulings in favor of employees for a change. All it will take is a couple of Supreme Court appointments over the next four years and it will be a different world for employees. This year, the Supremes will, for the most part, continue to bend toward corporate interests instead of the working people.

There were some baby steps toward becoming more pro-employee in the federal courts. The usually very pro-employer 11th Circuit sided with the NLRB in a recess appointment case.  Several federal courts found that sex discrimination includes sex stereotyping, providing protection for LGBT employees. Some other pro-employee decisions here and here. Still, the Supremes came in overwhelmingly pro-employer this year. Overall, the federal courts remain a relatively unfriendly place for employees in many circuits.

7. Arbitration Under Fire Although arbitration clauses have been the darling of employers, who are sneaking them into applications, handbooks and that giant stack of papers employees sign on their first day, look for some attacks this year coming from government agencies. Watch for NLRB, EEOC, FTC and maybe even DOJ to subject arbitration agreements to extra scrutiny. It’s doubtful Congress will take action this year, but if they do something to help consumers, employees will probably be able to benefit.

Some courts have tossed one-sided pro-employer arbitration agreements. However, the Supremes upheld class action waivers in arbitration agreements. The NLRB lost when it attempted to invalidate an arbitration agreement. Meanwhile, FTC is challenging a consumer arbitration clause. No legislation passed to help consumers or employees this year.

8. Bullies Will Slide Although states periodically consider anti-bullying laws, they always fail to pass. It’s likely 2013 will be no different. Watch for more consciousness-raising but no legal action this year.

Still no anti-bullying laws passed in 2013. Sigh.

9. Privacy Protections More state legislatures will pass laws against demanding employee social media passwords and other egregious employer snooping. Congress might even do something to stop some of the worse invasions of privacy, but I won’t hold my breath. They’re too busy with gridlock to actually do anything that might protect their constituents.

Arkansas, Colorado, Illinois, Nevada, New Jersey, New Mexico, Oregon, Utah, Vermont and Washington passed laws against demanding social media passwords, with at least 36 states trying to follow suit.

10. Background Check Restrictions More states will place limitations on background checks and what background information employers can use against applicants. Watch for laws limiting use of criminal records, unemployment, and credit history against applicants. EEOC will continue looking for disparate impact of background check information against women and minorities. It’s only a matter of time, say 2013 or 2014, before we see a case arguing that use of criminal records has a disparate impact on men, but it won’t come from EEOC.

10 states and almost 60 local governments have passed "ban the box" legislation prohibiting or limiting the use of criminal background checks. Some major employers also announced they'd end the practice. There was one unsuccessful case arguing that criminal background checks had a disparate impact on men. It didn't come from EEOC. As I discussed in 2 above, EEOC lost a number of criminal background cases this year based on racial impact. It is no surprise that it didn't try to expand the theory to include sex discrimination.

Overall, 2013 was a mixed bag for employees. Better than some years, and we definitely saw some activity to protect employees. The biggest surprise was the passage of some minimum wage increases, with 13 states raising the minimum wage.

Stay tuned for my predictions for 2014.

7 Claims Jonathan Martin May Have Regarding Dolphins Bullying Under Florida Law

Now that America finally woke up and realized that workplace bullying is a serious issue, thanks to the Miami Dolphins situation with Jonathan Martin, who quit after the team refused to do anything after he complained about workplace bullying, I thought I'd share my thoughts on the situation from the perspective of a Florida employee-side lawyer.

As I've written before, there is no state in the nation that has passed any law against workplace bullying. We have zero tolerance for bullying in schools, but nothing to protect employees? What a giant waste of corporate resources and time, to deal with the fallout, morale problems, and loss of good people that bullies cause. It's time to pass a law.

In the meantime, I have some theories about what claims Mr. Martin might have under Florida law if/when he decides to sue over this matter. I recently wrote a piece for AOL Jobs called 5 Ways Your Workplace Bully May Be Breaking The Law (call me prescient - the piece came out less than 2 weeks before the incident) where I talked in general about potential claims employees might have relating to workplace bullying.

While I obviously don't know what really happened, there has been lots of press speculation and reporting on what really happened with Martin. I can only speculate on what claims he might have.

Here are four claims I think Martin might have against the Dolphins:

1. Breach of contract: Surely he has a contract. It must say something about his working conditions. These athletic contracts are huge. If the contract says the Dolphins must provide a safe working environment, it's a straight breach of contract case.
2. Race or age-based harassment: Bullies tend to target the weak and the different. If Mr. Martin was targeted due to his race or because he was "too young" as the reporting tends to speculate, then he might have a discrimination claim. While the Age Discrimination in Employment Act doesn't cover discrimination based on being too young, the Florida Civil Rights Act covers all kinds of age discrimination. Harassment cases require that you report the harassment and give management a chance to correct the situation, which it seems he did, and was told to punch the harasser, which he thankfully didn't do. The questions will be 1. whether it was so severe or so pervasive that it altered the terms and conditions of his employment and 2. whether it was so intolerable that no reasonable person would have stayed. Having quit, he'll have to show that he was constructively discharged, which is tough, but not impossible. It looks like the coaches might have actually encouraged the harassment. If so, the Dolphins may well be on the hook.
3. Assault/battery: If anything got physical and management knew about it, then the Dolphins might be on the hook.
4. Intentional infliction of emotional distress: This is the one I see in all the newspaper articles about what kind of claim he might have but, truthfully, these cases are very tough to win in Florida. He went to the hospital for emotional distress, so he might have some pretty significant damages if he can prove this claim.

I usually recommend against bringing claims against individuals because they're almost always uncollectable even if you win. That's probably not the case against a wealthy football player, so Mr. Martin may have claims against the individual or individuals involved.

Here are 3 claims he might have against his harasser(s):

1. Tortious interference: I wrote awhile back about using tortious interference claims against harassers. Maybe this would be a good situation for that. The question will be whether the harassers stepped outside the scope of their employment. If management really instructed them to do this, then the harassers might argue they were acting within the scope of their jobs.
2. Assault/battery: If it got physical, he can sue for whatever damages he suffered.
3. Intentional infliction of emotional distress: Again, tough in Florida but maybe if things got physical or extreme he could sue his harassers for this.

I'm interested to hear any new facts that come out on this. While I'm sad this happened to Mr. Martin, some good could come out of all this of we get some anti-bullying laws passed as a result. If even a big, tough football player can be devastated by bullying, imagine what ordinary mortals who experience bullying must go through.

So, what do you think? Any other legal theories? Should workplace bullying be made illegal?

7 Ways To Protect Yourself If Your Boss Is a Bully

Last week, I answered a question from a "used and abused" reader who was facing a workplace bully. I talked about five ways that your workplace bully might be breaking the law. Today, I talk about some things you can do, starting today, to protect yourself if your boss is a bully.

Read my article in AOL Jobs for  seven things you can do, starting today, to protect yourself if your boss is a bully.

5 Ways Your Workplace Bully May Be Breaking The Law

I got this question from a reader at AOL Jobs:

Hi Donna,
What action would you suggest staff take when the Executive Director of a tax funded nonprofit organization, which is overseen by a board, is abusive to staff? Staff does not have access to HR; they report to the ED who reports to the board. Some incidents have been "investigated" by one or two board members and the HR of the employer of a board member. Nothing has improved. Incidents have been the ED slapping the hand, kicking, and yelling at an employee to "go do your f****** job," commenting on how an employee is dressed, yelling at staff, "forgetting" they did or said something, not following policies and procedures consistently and speaking harshly as to show their superiority. We are at a loss as to what to do. We are not permitted to speak to any member of the board without the ED's consent. We are a small staff, under 15 employees. Suggestions would be most welcome.
Thank you.
Used and abused

This reader is dealing with a bully, which is all too common these days. A career counselor or health care professional might view things differently, but I give my perspective as an employee-side employment lawyer in my response.

I've written before about how workplace bullying is not illegal in any state. Although 23 states have tried to pass anti-bullying laws, none have succeeded. Eleven states currently have anti-bullying laws pending, but I'm not optimistic. Still, there's hope for the bullied. Bullies frequently cross the line into illegal behavior at work. Read my article at AOL Jobs for some examples of how workplace bullies may be breaking the law.

13 Things Every Teen Needs To Know About Workplace Rights

School’s out for summer! Or it will be soon, and many teens will start summer jobs or even their very first real job. Yet schools do little, if anything, to prepare teens for the realities of the workplace. I’m always shocked when I encounter teens whose parents drag them to me after they suffer workplace abuse with no idea they have any rights at all.

So, if you’re a teen entering the workplace or thinking of applying for a job, read this. If you’re a parent, friend or relative of a teen who is entering the workforce, please print this and show it to them.

Here are 13 things teens need to know about workplace rights that their school probably didn’t teach them:

1. Minimum Wage: Federal minimum wage is $7.25 per hour. However, there is something called the youth minimum wage, which means that for the first 90 calendar days of any new job you can be paid as little as $4.25 per hour if you are under 20. State minimum wages may be higher. Here in Florida, the minimum wage is $7.79. Tipped employees may be paid a minimum wage of $2.13/hour as long as their wages including tips equal at least the higher of the state and federal minimum wage. State minimum wages for tipped employees vary. In Florida, it’s $4.77/hour. More details about wages can be found here.

2. Hours: If you are under 16, under Federal law your work hours are limited. You can’t work during school hours at all, and you can’t work more than 3 hours on a school day, including Friday; more than 18 hours a week when school is in session; more than 8 hours a day when school is not in session; more than 40 hours a week when school is not in session; and before 7 a.m. or after 7 p.m. on any day, except from June 1st through Labor Day, when you can work until 9 p.m. Federal law doesn’t limit work hours for teens 16 or older, but your state laws may. For instance, Florida law says if you’re under 18 you can’t work during school hours (with exceptions), and that if you’re 16 or 17 you may only work up to 30 hours per week, not before 6:30 a.m. or later than 11 p.m. and for no more than 8 hours a day when school is scheduled the following day, and for no more than 6 consecutive days.

3. Breaks: Federal law doesn’t require any work breaks. However, many states require work breaks, especially for workers under 18. In Florida, workers under 18 are not allowed to work more than 4 consecutive hours without a 30 minute uninterrupted work break. For breaks of more than 20 minutes, employers don’t have to pay. Breaks 20 minutes and under are hours worked that need to be paid.

4. Sexual Harassment: If your boss, coworker, customer, vendor or potential boss is harassing you because of your gender or gender identity, that’s sexual harassment, and it’s illegal. This includes unwanted sexual advances, requests for sexual favors, offensive comments about men or women in general, off-color jokes, touching, and other harassment that is either so severe or so frequent that it alters the terms and conditions of your employment. A single offhand comment may not be sexual harassment, but a single incident that is severe could be. As a minor, you have added protection. Any adult sexually harassing you is probably committing a crime, and could be a sexual predator. It is really important that you read the company’s sexual harassment policy when you start working and write down where you are supposed to report it if it occurs. You don’t have to be afraid, and you should not let yourself become a victim. People you can and probably should report sexual harassment to are your Human Resources department at work and your parents. If you’ve been touched, then you may want to contact the police. If you see someone else being sexually harassed, you should report it. Harassers will keep doing it, and their behavior will get worse, unless an adult stops them.

5. Contracts: In most states, if you’re under 18 you can’t be bound by a contract, including an employment contract. You (or your parents) can void a contract you’ve signed while underage. However, once you turn 18, you probably can’t void it anymore. Employment contracts might have provisions saying you can’t work for a competitor for a year or two, waiving your right to a jury trial, confidentiality obligations, and other important clauses. If you are asked to sign a contract, always read it and keep a copy once you’ve signed. If you don’t understand it, talk to your parents or an employment lawyer in your state about it.

6. Internships: While many teens take unpaid internships for the summer, most employers get internships wrong. If your internship is not a real learning experience for you, then you probably have to be paid for the work you do. An internship is supposed to be training similar to that you would receive in a vocational school. Filing, stuffing envelopes, and answering phones should normally be paid. Internship assignments should build on each other so you develop more skills, similar to the way each chapter of a textbook builds on the other. You should be getting training that benefits you, and you should be getting more benefit than the company. If they can make money off what you're doing, or if you're saving them from having to pay another employee, you probably have to be paid.

7. At-will: If you live anywhere but Montana, your employment is probably at-will, meaning your employer can fire you for any reason or no reason at all (with some exceptions). They can fire you because they’re in a bad mood, because they didn’t like your shirt, or because you lipped off to them like you lip off to your parents. Exceptions that would make a firing illegal include firing due to discrimination, making a worker’s comp claim, and blowing the whistle on illegal activity of the company. If your boss tells you to do something that isn’t illegal (or sexual harassment), then do it. No eye-rolling, back-talk or attitude.

8. Social Media and Cell Phones: You are expected to work during work hours. That means no texting, emailing, calling, tweeting, instagraming, facebooking, downloading, or surfing at work, unless it’s work-related. If you check your texts, emails, or social media on a company computer, cell phone or other device, the company probably has the right to look at it. If you view or send inappropriate pictures, jokes, or videos, you can be fired for doing so. There is very little privacy in the workplace, and you have few rights. Assume you’re being watched at all times at work and you won’t go wrong. Oh, and remember all those party pics and embarrassing photos you posted before you started applying for work? Employers and potential employers can see them. You probably want to check your social media pages and pull down anything you can that might be inappropriate for an employer to see.

9. Human Resources: If your employer is big enough, you probably have someone who is designated as the Human Resources person or a whole department called “Human Resources.” It may be referred to as HR. This is the place to go for information about work rules, to report sexual harassment or discrimination, and you’ll probably have to go there on your first day to fill out a stack of forms. While they can be very helpful if you have questions or concerns, they aren’t your buddies. Human Resources represents your employer, not you. They aren’t your mom or your best friend, so don’t go to them with every petty complaint, confess you did something wrong, or tell them about the wild party you went to over the weekend. Keep it professional.

10. Discrimination: Discrimination against you for being you isn’t illegal. However, discrimination and harassment due to race, sex, sexual identity, national origin, disability, religion, color, pregnancy and genetic information are. In some states, there are more categories of illegal discrimination. For instance, in Florida it’s illegal to discriminate against you because you’re too young or because of marital status. Whether sexual orientation is a protected category depends on your state and local law. No federal law bars sexual orientation discrimination.

11. Bullying: While your school might have zero tolerance for bullying, your workplace may be a bullying free-for-all. No federal or state law exists that prohibits workplace bullying. However, workplace bullies are very much like school bullies: they focus on the weak and the different. If you need to complain about a bully, make sure you do it in a way that’s protected. If the bully is picking on the weak, are they weak because of a disability, pregnancy, or age? If they’re picking on the different, is the difference based on race, national origin, age, or religion? If you report illegal discrimination, the law protects you from retaliation. If you report bullying, no law protects you.

12. Dangerous Work: It is every employer’s duty to maintain a safe workplace. If you think your workplace is unsafe, you can contact the Occupational Safety and Health Administration (OSHA) to report dangerous conditions and get more information. Certain jobs are deemed too hazardous for teens under 18 to do. A plain English description of the 17 jobs considered too dangerous for minors is here. There’s a different list for agricultural work that applies to workers under 16.

13. What Kind Of Work You Can Do: Depending on your age, there may be limits on the type of work you can do. If you are under 14, you can work, but your options are limited. You can deliver newspapers, babysit, act or perform, work as a homeworker gathering evergreens and making evergreen wreaths, or work for a business owned by your parents as long as it’s not mining, manufacturing or one of the occupations designated as hazardous. If you are 14 or 15, you can do things like retail, lifeguarding, running errands, creative work, computer work, clean-up and yard work that doesn’t use dangerous equipment, some food service and other restaurant work, some grocery work, loading and unloading, and even do some work in sawmills and wood shops. We’re talking non-manufacturing and non-hazardous jobs only. If you are 16 or 17, you can do any job that isn’t labeled as hazardous.

The Department of Labor has a website where you can get more information about employment laws that apply to teens. An interactive advisor about federal law may be found here.

Of course, my book Stand Up For Yourself Without Getting Fired can help anyone new to the workplace since it covers how to handle workplace crises and issues from the interview and application, to your first day and that giant stack of papers, to workplace disputes, to promotions, to termination, and even post-termination.

Guest Post: Are Workplace Bullies Violating Criminal Stalking Laws?

Today we have a special treat. My associate, who now chooses to be anonymous, has written a guest post. This is his very first blog post. I think he did a pretty nice job. I hope he'll share some more insights with us here in the upcoming months. Here's his post, about a creative solution to the very common problem of workplace bullying:

Are Workplace Bullies Violating Criminal Stalking Laws?

by: Associate Attorney who now chooses to be anonymous

Does this sound familiar?: “My co-worker follows me around all day, every day, tormenting me, and waiting for me to make a mistake so she can report me to a supervisor?” Or, how about this?: “My boss berates me all day, every day. He just tells me I am worthless. I am a disgrace to the company. I should never have been hired. If it were up to him, he would prefer to see me on the streets.” Maybe you have stack of emails and attachments from a co-worker. The photos are of grotesque images that the co-worker sends to you on a daily basis because she knows you have a weak stomach and cannot handle the images.

This kind of mistreatment frequently happens at work with supervisors or coworkers. If I heard this story, I might say to you, “Yeah, you are right! That guy is a jerk! That guy is obnoxious! She is annoying! She is a BULLY!!” However, I would also tell you that no state has passed any anti-bullying laws, so you may end up with no remedy. Unless this bullying also amounts to sexual harassment, racial harassment, or other discriminatory harassment, there is likely no civil remedy for an employee facing workplace bullying. You may file a written complaint with H.R. or inform your supervisor, but you are not protected against retaliation if you do this. Chances are, this course of action will lead nowhere. You may have two possible choices: (1) suck it up or (2) start looking for a new job.

However, there may be recourse for a victim of workplace bullying, as long as the bullies’ behavior is criminally annoying, obnoxious, or rude. It just may not be recourse that a civil attorney can help out with. Why? Because it involves filing a criminal complaint, not a lawsuit.

So, if a co-worker or boss’s bullying rises to the level of criminality, you may be able to seek an injunction against their behavior by using your state’s criminal stalking statute. And, I am not talking about your friend Tony who is “criminally” annoying the way he always one-ups everyone. (“Hey Tony, I wrote my first blog post today!” “That’s nice Ryan! I have 50,000 followers on my blog site and am working on my third novel, entitled, ‘I am Just a Little More Awesome than You Are.’”). I am talking about those people who fit into the descriptions above, which behavior falls squarely within your state’s criminal stalking statute.

The Florida stalking statute provides, “A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree.” Sound familiar? If so, your workplace bully may be a stalker.

A violation of this statute may result in a definite term of imprisonment not exceeding 1 year. To harass someone under this statute requires “a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” And yes, your boss harassing you over your work is probably a “legitimate purpose,” no matter how petty you think she’s being.

In Florida, this statute has been successfully used by employers against disgruntled employees after disputes concerning unpaid wages escalated. It seems logical that this statute could be used by employees for protection against workplace bullies, including co-workers and supervisors. I was not able to find any case law where an employee did use the law to handle a workplace bully, but may be a last resort possibility for an employee whose daily existence at work has become dreadful. If your employer retaliates against youfor seeking a stalking injunction or filing criminal charges against a co-worker, then you could have a potential whistleblower retaliation claim in a civil lawsuit. If that happens, it may be time to talk to an employment lawyer in your state.

The Florida statute is very broad and could potentially provide a Florida bullying victims with some recourse against workplace bullies, allowing them to keep their jobs without having to suck it up and deal with bullies on a daily basis. Indeed, stalking, even aggravated stalking, can encompass acts that, in and of themselves, might fall short of prosecutable conduct. This means, “prohibited behavior under the statute encompasses both non-criminal and criminal behavior.” If you’re a bullying victim, it may be worth checking out your state stalking law.

Stalking is very real and very scary, which is why every state has stalking laws on the books. Although the first anti-stalking law was not enacted until 1990, the reality of stalking in the workplace is not a new concept. Almost a decade ago, attorney Janet Goldberg wrote, “An employee who fears a potential attack by a co-worker can use these laws to restrain that individual. For example, “stalking” laws in some states make it a criminal offense to engage in conduct that threatens another person’s safety.” Ms. Goldberg’s article was addressing workplace violence. However, the stalking laws discussed above are not limited to situations where a threat of violence is involved. In Florida, you do not need to fear a potential attack by the bully to be the victim of stalking. If there is such a credible threat, the bully could be charged with aggravated stalking, a felony. In fact, even aggravated stalking may be based on threats that fall short of an assault.

Some of the most unjust and frustrating circumstances are faced by employees who are simply trying to go to work without being harassed everyday by workplace bullies. I would love to hear from any lawyers or employees who have either used stalking laws in the employment context or who have defended against such a suit or criminal case. I would also like to hear about other strategies used by attorneys to assist clients in dealing with workplace bullies. The sad fact is, we need clear anti-bullying laws if we want to eradicate the workplace bully.

Tortious Interference: Ammunition Against Workplace Bullies and Harassers?

            A new case in Florida is part of a growing trend where employees strike back against coworkers who bully or harass them at work. In Alexis v. Ventura, out of Florida’s 3d DCA, the court said it was error to dismiss a tortious interference claim against a supervisor.

            She alleged that her boss created a hostile environment motivated by a discriminatory intent against her. The court set out the elements of a tortious interference claim:

To state a claim for unlawful interference with an advantageous business

relationship, Alexis must allege the following elements:

1. The existence of a relationship between Alexis and her employer, under

which Alexis has legal rights;

2. Ventura’s knowledge of the relationship;

3. An intentional and unjustified interference with that relationship;

4. By a third party;

5. Resulting in damages to Alexis caused by the interference.

Sloan v. Sax, 505 So. 2d 526 (Fla. 3d DCA 1987).

The question on appeal was whether the supervisor was a “third party” for purposes of her claim. Normally, a supervisory or managerial employee is considered to be a party to the employment relationship. However, the court said:

There is a recognized exception to this general rule, as explained in O.E. Smith’s Sons, Inc., v. George, 545 So. 2d 298 (Fla. 1st DCA 1989):

For the interference to be unjustified, the defendant must be a third party, external to the business relationship. However, the privileged interference enjoyed by a party that is integral to the business relationship is not absolute. The privilege is divested when the defendant “acts solely with ulterior purposes and the advice is not in the principal’s best interest.”

Id. at 299 (quoting Sloan v. Sax, 505 So. 2d 526, 528 (Fla. 3d DCA 1987)).

            I thought this was an interesting case because it could provide extra ammunition to an employee who is a harassment or even a bullying victim. The problem with suing individuals, of course, is that they rarely are wealthy enough to pay off judgments of any amount. Still, where bullying and general harassment are legal, this type of suit might enable victimized employees to strike back.

            I checked it out and it looks like tortious interference claims have been allowed in some states but not others. Some states that seem to be allowing these claims (I’m sure my colleagues in these states will tell me if I’m wrong) include Massachussetts, Texas, Missouri and New York. In addition to the problems with suing the individuals, your company is always going to be a “party” to your employment relationship, so you won’t be able to tag your employer with this type of claim.

            Another downside I see to these claims is you have to claim the coworker or supervisor was acting outside the scope of their employment, which might mean a free pass from the employer if you’re also suing them. But if the company points to the individual and says they were working outside the scope of their employment, it might be wise to bring in the individual and let the jury decide which one is to blame.

            I’m always looking for ways to go after bullies, so this looks like a promising claim if it’s allowed in your state.