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

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

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

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

The Board explained what constitutes "concerted activity":

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

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

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

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

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

Yes, It's Illegal To Retaliate If HR Managers Or Management Oppose Discrimination

Management-side lawyers are always trying to come up with new ways to make discrimination and retaliation legal. So it's no surprise that they argued in a recent case that there is a "management exception" to retaliation. The theory was that, if an HR manager or other management opposes discrimination as part of their regular job duties, they aren't covered by anti-retaliation laws.

The 11th Circuit has clearly rejected this argument:

The manager exception would carve out of Title VII protection the actions of management employees who have in the course of their normal job performance opposed an unlawful employment action of an employer. That carveout does not fit within the ordinary meaning of the word "opposed," and it is contrary to how Title VII uses the word. For one thing, the statute does not put any qualification on the word "opposed." It does not say an employee has engaged in protected activity unless her opposition came as part of her duties in the normal course of her employment.

Because it's not explicit in the text, to limit the plain meaning of "opposed," the manager exception would have to be implicit in how a person speaking "in ordinary discourse . . . would naturally use the word" opposed. Crawford, 555 U.S. at 277. But the limitations imposed on the word "opposed" by the manager exception would be neither "ordinary" nor "natural" to someone using that word. A person speaking "in ordinary discourse" would think an HR manager has opposed her employer's unlawful employment practices even if it's part of her job to do so. Opposition is opposition, whether the opposer is drawing a manager's salary or not.

It is too big a stretch to think that Congress silently and implicitly wrote into the opposition clause a significant exclusion of an entire category of employees, HR managers. We "assume that Congress does not generally hide elephants in mouseholes." CSX Transp., Inc. v. Ala. Dep't of Rev., 888 F.3d 1163, 1176 (11th Cir. 2018) (quotation marks omitted). That assumption is especially true here where the elephant would have to trample the ordinary and plain meaning of the words Congress did choose.

Whew! Thank goodness. Another attempt to make retaliation legal is rejected. If you're an HR person or other management employee who has opposed discrimination, it's illegal for your employer to retaliate against you. If you think illegal retaliation happened to you, contact an employee-side employment lawyer in your state to discuss your rights. 

New Employer's Retaliation For Opposing Discrimination By A Former Employer Is Illegal

 One of the biggest worries I hear from clients and potential clients is the fear that filing a lawsuit for discrimination will follow them to a new employer. And it's a legitimate concern. A lawsuit is a public record. It will turn up in a background check. Plus, you'll have to testify and appear at hearings in your case, and your new employer will likely find out about your case. Even if it's not your case, what if you're subpoenaed to testify in a former coworker's case?

So, can a new employer retaliate against you for opposing discrimination by a former employer? The 11th Circuit Court of Appeals says such retaliation is illegal.

There is nothing in the anti-retaliation provision's opposition clause that permits an employer to retaliate against one of its employees for opposing an unlawful employment practice of a former employer. The clause forbids retaliation by "an employer" against "any individual" for having "opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a) (emphasis added). It doesn't say "opposed any practice of a current employer made an unlawful employment practice by [Title VII]." A former employer's unlawful employment practice is just as much an unlawful employment practice as one of a current employer. The statutory text makes no distinction between the two. Opposition is opposition, and any unlawful employment practice is any unlawful employment practice.

And the entity that the statutory provision forbids from retaliating is "an employer," not just the employer whose unlawful employment practice the employee opposed. In this context, as is usually the case, the indefinite article "an" means "any." See Alabama, 778 F.3d at 933. Georgia Pacific is unquestionably "an employer," and at the time it allegedly retaliated by firing Patterson it was her employer.

We hold that under the opposition clause's plain language, a current employer may not retaliate for opposition clause conduct even if it is directed at or involves only a former employer. See McMenemy v. City of Rochester, 241 F.3d 279, 284 (2d Cir. 2001) ("We think that Title VII protects an employee from any employer, present or future, who retaliates against him because of his prior or ongoing opposition to an unlawful employment practice or participation in Title VII proceedings.").

This case only refers to an employer, and not a potential employer. A discrimination lawsuit can turn up in a background check and there could be little way to prove that it was the reason you were denied a position. Still, Title VII makes such discrimination illegal:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-­management committee controlling apprenticeship or other training or retraining, including on—the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

The Fair Credit Reporting Act requires that employers provide you with a copy of any background check that caused them to turn down your employment, so it's wise to ask for a copy of any background check to see if a discrimination lawsuit is mentioned.

Bottom line: employers and potential employers can't legally discriminate against you for opposing discriminaiton by a former employer. It's your burden to prove that was the reason, but if you think this is what happened, talk to an employee-side employment lawyer in your state about your rights. 

Department Of Labor Gives Examples of Illegal Retaliation

The U.S. Department of Labor has provided a guidance that gives specific examples of what constitutes illegal retaliation. The complete guidance is here. Some specific examples they provided are:

Example 1: Employee calls WHD about overtime. 

Nelson works as a cook at a restaurant and contacts WHD confidentially to inquire about overtime pay. Nelson tells another cook what he learned from WHD and his co-worker tells someone on the wait staff. Later that day their manager overhears two wait staff talking about the call and terminates Nelson’s employment. In this scenario, terminating Nelson’s employment because he contacted WHD (or was suspected of contacting WHD) would be prohibited. WHD may investigate or Nelson may file a private cause of action seeking appropriate remedies, including, but not limited to, reinstatement, lost wages, and liquidated damages. 

Example 2: Employee asks for additional break time to express breast milk. 

Aisha is a new mother who works for a call center. She uses her lunch break to express breast milk and needs additional time to finish pumping before she is able to return calls at her work station. Her boss complains when she is late returning from lunch and tells her she cannot use any time beyond her meal break for “personal stuff.” When Aisha asks if she has a right to take another break for pumping later in the day, her boss sends her home for the rest of her shift without pay. In this scenario, Aisha was sent home for attempting to exercise her rights under the FLSA. After investigating, WHD, in addition to requiring the employer to provide the requisite time and space for nursing mothers in compliance with the law, determines Aisha may also be entitled to back pay and liquidated damages for wages she lost when her boss sent her home in retaliation for requesting a break. 

Example: Worker penalized for using FMLA leave to care for child. 

Jaime takes approved FMLA leave to care for his seven-year-old daughter when she is in the hospital overnight and recovering from surgery. Jaime returns to work as scheduled but receives three negative attendance points for the days he used FMLA leave. Under his employer’s no fault attendance plan, employees are allocated points for every absence from work, regardless of the reason for the absence. Employees are disciplined when they accrue a set number of points, and employees who accrue more than ten points in a calendar year may be terminated. 2 A state employee’s private right of action may be limited by the sovereign immunity provision of the Eleventh Amendment. Id. 6 In this scenario, assigning attendance points to Jaime’s FMLA-protected leave days would be prohibited. Under the FMLA’s anti-retaliation provisions, an employer may not use the taking of FMLA leave as a negative factor in employment actions and may not count FMLA leave days under no fault attendance policies. In an investigation, WHD would require that the employer remove the attendance points from Jaime’s employment record for the days he used FMLA leave to care for his daughter. 

Example: Employee returns to work and her hours are cut in half. 

Deborah used FMLA leave from her job as a front desk clerk at a hotel when she suffered from migraine headaches that made it impossible for her to work. She was approved for FMLA leave and used it for three days in January and one day in February. In April, she had another episode, and used FMLA leave for two days. When she returned to work her new manager reduced her schedule from 40 hours to 20 hours a week saying they need workers who will show up every day. WHD completes an investigation and requires the hotel to return Deborah to her previous schedule and pay her for an additional 20 hours a week in wages for the duration of the period she worked the reduced schedule. WHD also requires the employer to pay Deborah an amount equivalent to her lost wages in liquidated damages. 

Example: WHD investigates and employer fires crew of agricultural workers. 

An employer houses 15 migrant agricultural workers in housing that is determined to be substandard. Workers sleep on the floor, have no electricity, use water from a garden hose, and have one hotplate for cooking that is shared among all of the workers. After a WHD investigator arrives at the location unannounced to inspect the housing conditions and interview workers, the employer fires all 15 workers because, “We don’t want any whiners on the team.” The employer does not pay the workers for their final week of work. In this scenario, WHD may pursue back pay, and reinstatement of employment for every worker, and civil money penalty assessments against the employer.

Example: Worker threatened with deportation. 

An employer participating in the H-1B visa program hired seven workers with H-1B visas to provide occupational, physical, and speech therapy services to patients in their homes. The employer deducted a monthly sponsorship fee from the pay of each worker with an H-1B visa. The employer required the workers to sign a form declaring that the deductions were for recouping personal loans it purportedly gave to the workers. When one worker refused to sign the document, the employer threatened him with deportation, criminal perjury, and threats of physical violence against his family in his home country. In this scenario, WHD may pursue back wages for the illegal deduction, civil money penalties against the employer for the retaliation, debarment from the H-1B program for two years, and other appropriate legal or equitable remedies. WHD also may, potentially, make a referral to the U.S. Department of Justice, Civil Rights Division, Immigrant and Employee Rights Section.2F 3

Example: Supervisor lies about employee’s performance history because of WHD interview. 

Charlotte is an employee at a vehicle assembly plant where WHD conducts an LVC compliance verification under the USMCA. She was instructed by her immediate supervisor to tell WHD representatives that she earns $16 an hour despite the fact that she actually earns $13.50 an hour. After the WHD representatives leave the worksite, Charlotte’s supervisor asks her what she said to WHD representatives. When Charlotte states that she told the truth, the supervisor fabricates a story of insubordination that results in the termination of Charlotte’s employment. Charlotte had no prior occurrences of corrective action and was otherwise in good standing with her employer. In this scenario, after investigating and verifying that Charlotte was retaliated against for cooperating with a WHD investigation, WHD may pursue lost wages, reinstatement, and the assessment of a civil money penalty.

Example: Federal contract worker’s promotion denied after they inquire about sick leave. 

Bernard works on a federal contract covered by EO 13706. He is a supervisor of maintenance services at a national park and is about to be promoted. When Bernard emails his employer, the contractor, asking about the availability of paid sick leave to attend his spouse’s upcoming medical appointments, his planned promotion is cancelled and he is rescheduled from working weekdays only to weekdays and weekend shifts. When Bernard asks about the changes, his manager states the changes were made so that he would have fewer responsibilities at work and more time available to help with his wife’s health care. A representative for the national park (the contracting agency) who communicates with Bernard about work orders during the week, contacts WHD on Bernard’s behalf. In this scenario, WHD may investigate to determine whether the maintenance contractor has violated the anti-retaliation provisions of the EO and its regulations. The employer may be required to grant Bernard the promotion and return him to his previous work schedule and duties. He may also receive back wages to compensate for any difference in wages received compared to the wages he would have received if the retaliatory actions had not occurred. 

Example: Contract worker asks about deductions from pay and is denied bonus.

Geri is a crewmember working on the construction of a new post office building for a federal contractor covered by EO 14026. Geri asks her company payroll department about deductions from her paycheck that may bring her earnings below $15.00 per hour. The payroll department refers her question to a corporate officer of the company who directs the payroll department to cancel Geri’s quarterly performance bonus. In this scenario, a retaliatory denial of the bonus would be prohibited by EO 14026. WHD may investigate, determine the employer violated the EO, and require payment of the bonus and other wages that may be due if the deductions were improperly made.

These are just a few examples they provide for retaliation. The agency also describes retaliation in general:

Retaliation occurs when an employer, including through a manager, supervisor, administrator or other agent, takes an adverse action against an employee because they engaged in a protected activity.

 Examples of protected activity include making a complaint to a manager, employer, or WHD; cooperating with a WHD investigation; requesting payment of wages; refusing to return back wages to the employer; complaints by a third party on behalf of an employee; consulting with WHD staff; exercising rights or attempting to exercise rights, such as requesting certain types of leave; and testifying at trial. 

Under many of the statutes enforced by WHD, an employee can be protected from retaliation even if the employee’s complaint to the employer or WHD is based on a mistaken belief that the employee’s rights have been violated. For example, if a worker believes, and so tells an employer, that he is owed overtime pay for the hours he worked, the worker has engaged in a protected activity, even if the worker’s belief that he is due overtime turns out to be mistaken because he has been correctly paid. 

An adverse action is any action that could dissuade an employee from raising a concern about a possible violation or engaging in other protected activity, such as filing a complaint or cooperating in a WHD investigation. An adverse action taken by an employer can take many forms, including termination; confiscating a worker’s passport or other immigration documents; disciplinary actions; threats to employees, their families or co-workers; reduction of work hours or rate of pay; shift changes or elimination of premium pay; blacklisting; and demotion. Adverse actions can be subtle, such as excluding an employee from a regularly scheduled meeting, or overt, such as intimidating employees to return back wages found due (“kickbacks”), threatening an employee with deportation, or terminating an employee. 

Bottom line: If you think you've been retaliated against for objecting to something illegal your employer did, for contacting a government agency, or for taking protected medical leave, you should talk to an employment lawyer in your state about your rights. 

 

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.

Aftermath of #MeToo? I Predict Ugly Backlash

In the wake of Al Franken's resignation over eight women's allegations of forced open-mouthed kissing, butt grabbing and boob groping, there has been much angst. Many of my fellow liberal Democrats are beginning to understand what many HR folks have had to go through when the top salesperson, popular CEO or much-loved manager is accused of sexual harassment. The overwhelming temptation is to deny, attack the accuser, circle the wagons and protect the harasser.

I have to admit, that was my first instinct as the initial accusations came up against Sen. Franken. At first, I thought this must be someone paid off by right-wing interests to discredit a strong liberal voice. But then another came forward. And another. One is a former Democratic aide. No, he's not a rapist like some of the harassers we've heard about lately. He didn't drop his pants. But a U.S. Senator forcing women to kiss him while he shoves his tongue down their throats and grabbing butts during photo ops while in office is bad enough.

I've been saying it for 31 years and will keep saying it: if you don't stop a sexual harasser, their behavior accelerates and spreads. If Democrats did a wink-wink at Franken's accusations and did nothing to punish him, he would assume he could get away with such behavior and continue, plus others would assume they could do the same. Sure, Franken is the much-beloved manager, the top salesperson, the popular CEO. There was talk of running him for President.

But failure to act would perpetuate the culture of sexual harassment that exists in this country. That's how we got here in the first place.

Democrats and liberals are mad. These are the folks who would normally be clamoring for tougher sexual harassment laws in the wake of #MeToo. I predict that the loss of Franken and Conyers, plus some major Democratic fundraisers, will mean that little is proposed to protect sexual harassment victims. And I wouldn't expect any such activity from Republicans in any instance, since the Republican leadership seems only to care about women if they are a fetus or carrying a fetus.

It's Already Getting Ugly Out There

I've heard ugly things about the victims and the women who demanded Franken resign already:

• "Stupid bit##es. They'll regret this." Of course we will. We'll suffer the loss, the same as the company suffers when the top salesperson or the CEO is let go. But we should be mad at Franken for failing to stop his boorish comedy routine when he became a Senator, not the accusers, and not the women in Congress who demanded he step down. Do you honestly think the women in the Senate didn't think about losing the possibility of taking back the Senate before they acted? They're on the front lines. Of course they did. But they also had to be thinking that Franken had lost any moral authority on women's issues or other issues of character if he stayed.
• "It's a matter of degree. What he did wasn't as bad as Weinstein." I've heard this about Franken and about much-loved Garrison Keillor. Keillor claims he was fired because he only accidentally touched a woman's bare back and I call bull****. For us to believe that, we have to assume that the head of Minnesota Public Radio is a moron willing to sacrifice their biggest moneymaker over nonsense. I don't believe that for a second. I guarantee that Keillor has a rock-solid contract saying he can only be fired for cause, so if he really believes what he's saying I guess we'll hear about it in court. But I suspect we won't because then the real allegations will come out publicly. As for Franken, no, he isn't as bad as Weinstein. So maybe this isn't fatal to his career. Maybe if he got some counseling and sexual harassment training he could apologize to the women and voters and say he will do better. Maybe they will give him a second chance. I might if I were them. But I wouldn't keep him as a salesperson and I don't think he should go consequence-free as a Senator.
• "There's no proof. It's just her word." Yep. Welcome to my world. I face this every time I bring a sexual harassment claim. Most harassers aren't stupid enough to leave witnesses or evidence. But here's the thing. The women who come to me are usually terrified. They're crying in my office. They suspect that, if they report the harassment, they'll face shunning, mockery, retaliation, loss of their career. And they aren't wrong. In one case, I'm friends with a very liberal man who heard about an accusation that caused a man in his industry to resign. His response? "I would never take a meeting with her. I wouldn't trust her." This was a case where the company's lawyers investigated her allegations. Do you honestly think the company's lawyers didn't do everything they could to discredit her and save their guy? If the company's lawyers are against him, something really serious must have happened. Yet this woman's career is probably damaged irreparably. Men will Mike Pence her and refuse to meet with her alone. They will assume she's a liar, although she did not sue or seek money based on her accusation.
• "These women are liars. They're just looking for publicity." Oh, sure. Everyone wants publicity that will get them threatened, shunned, avoided and mocked. Because they all say how well things went for Anita Hill and Monica Lewinsky. Most of these women came forward despite being terrified and are not seeking any money. If they are still within the statute of limitations, they should seek money because that's the only thing corporations understand.

I Predict Backlash

I predict backlash. These are just some of the more printable comments from liberals that I've seen. If liberals have turned on the #MeToo movement, backlash is inevitable.

Here are some of the backlash consequences I predict:

• Judges and juries: They will punish sexual harassment victims even worse than usual. The victims will be greeted with more suspicion and skepticism and even worse case law than what exists today. The raised consciousness that everyone seems to think will happen, the presumption of truthfulness of the accuser, will fail to come to fruition. 
• The victims: Many of the women who openly made accusations will be shunned and avoided. Their careers will take a step backward and maybe halt altogether. While we've had a brief period where women got brave and openly made accusations, that will roll way back as the consequences become apparent.
• The law: No improvements will be made. We won't get a separate law on sexual harassment that makes the standards and penalties clear. We'll be stuck with cases interpreting Title VII and state laws that are difficult to navigate. There will be a push to roll back sexual harassment protections in the next few years, and the public may buy it. Little or nothing will be done to protect victims against retaliation.
• The harassers: Some who were outed will manage to redeem themselves and come back in their industries. Some will continue and get worse because nobody dared to report them. The culture of sexual harassment will continue in this country for at least another decade.

I hope I'm wrong. I hope that we can all come together and work on some sensible improvements to the existing sexual harassment laws. I hope we will be in a new era of believing the victims who come forward to accuse sexual harassers.  I hope we crush the culture of sexual harassment and move forward toward true equality for women.

But I'm not wrong.

Former Employer's Attorney Can Be Liable For Despicable Retaliation

In a case that has the management-side bar moaning and groaning, the 9th Circuit held that an attorney who set up an ICE deportation sting against a client's former employee could be held personally liable for retaliation. As if it weren't bad enough that this attorney represented an employer that used the employee's immigration status to bully them into staying with the company, then failed to pay wages due, this attorney then had the former employee, a milker for a dairy, deported. Indeed, he bragged that it is his practice to have employees who sue his clients deported:

Here's what the Court said about the facts:

Instead of complying with federal law, the Angelos wielded it as a weapon to confine Arias in their employ. When Arias informed Luis Angelo in 1997 that he had been offered a position with another dairy, Luis “responded that if [Arias] left to work at the other dairy, [Luis] would report the other dairy to federal immigration authorities as an employer of undocumented workers,” which Arias was. This threat caused Arias to forego his other employment opportunity and to remain with the Angelos.
. . .
On June 1, 2011, ten weeks before the state court trial, the Angelos' attorney, Anthony Raimondo, set in motion an underhanded plan to derail Arias's lawsuit. Raimondo's plan involved enlisting the services of U.S. Immigration and Customs Enforcement (“ICE”) to take Arias into custody at a scheduled deposition and then to remove him from the United States. A second part of Raimondo's plan was to block Arias's California Rural Legal Assistance attorney from representing him. This double barrel plan was captured in email messages back and forth between Raimondo, Joe Angelo, and ICE's forensic auditor Kulwinder Brar. Arias quoted these revealing exchanges in his current complaint:
. . .
Plaintiff became aware on June 22, 2011 that Defendant had provided information concerning Plaintiff to the immigration authorities. Fearing that he would be deported and separated from his family, Plaintiff suffered anxiety, mental anguish, and other emotional distress from Defendant's retaliatory action. 

On July 11, 2011, one month before trial, the parties participated in a settlement conference. In lieu of proceeding to trial on the wage and hour claims comprised within the 2006 Lawsuit, Plaintiff entered into a settlement and release of those claims, due in substantial part to the threat of deportation created by Defendant's communications with ICE. 

On information and belief, Defendant RAIMONDO's actions against Plaintiff are reflective of and consistent with his pattern and practice of retaliating against employees who assert their workplace rights. In fact, Defendant RAIMONDO has stated in a declaration filed in a court action that it is his practice to investigate the immigration status of plaintiffs who have brought legal claims against his clients.  

On at least five additional occasions, and consistent with his pattern and practice, Defendant RAIMONDO has contacted ICE with respect to employees who have asserted their workplace rights against employers whom Defendant RAIMONDO has represented, and has offered his assistance to ICE in apprehending those employees.

On May 2, 2013, Defendant RAIMONDO confirmed the above pattern and practice in an email he sent to Thomas Hester of the Office of Inspector General at the Legal Services Corporation, in which he stated, “The time when I have had litigants deported, I have always simply taken action rather than make any threats. The attorneys find out when their clients are already gone.”

Wow. Just wow. Every time I think I've heard the most despicable thing done to an employee possible, I hear something worse.

The Court's findings give me hope in an otherwise dismal landscape for employees:

Congress made it illegal for any person, not just an “employer” as defined under the statute, to retaliate against any employee for reporting conduct “under” or “related to” violations of the federal minimum wage or maximum hour laws, whether or not the employer's conduct does in fact violate those laws. ․ Moreover, “the remedial nature of the statute further warrants an expansive interpretation of its provisions. ․” 

Id. at 857 (second omission in original) (quoting Herman v. RSR Sec. Servs., 172 F.3d 132, 139 (2d Cir. 1999)). 

Conclusion 

The FLSA is “remedial and humanitarian in purpose. We are not here dealing with mere chattels or articles of trade but with the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others ․ Such a statute must not be interpreted or applied in a narrow, grudging manner.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944). 

Accordingly, we conclude that Arias may proceed with this retaliation action against Raimondo under FLSA sections 215(a)(3) and 216(b). Raimondo's behavior as alleged in Arias's complaint manifestly falls within the purview, the purpose, and the plain language of FLSA sections 203(a), 203(d), and 215(a)(3).

I suspect that some federal courts will not view a lawyer's liability under the statute in the same way, but I think this is the correct conclusion. It's one thing to advise a client on whether a client can take a particular action. That should be protected by attorney-client privilege. But once the attorney crosses the line and personally takes retaliatory action, then they should be liable.

I think, at least here in Florida, the Florida Bar would look askance at any lawyer who set up a deportation sting at a deposition or mediation, but I have no idea how other Bars would look at it. Two Florida lawyers who set up an opposing counsel for a DUI sting were disbarred last year.

And this brings me to a pet peeve about employment law. Most management-side attorneys act like professionals. It's a job like any other, not to be taken personally. Some, on the other hand, consider law to be a blood sport and try to destroy the litigant (and sometimes the litigant's attorney) with all kinds of nasty out-of-court tactics. An employee suing a client should not be taken as a personal affront (and good luck making money as a defense litigator if nobody sues your clients). A lawyer making vicious attacks against a litigant (other than zealous representation in court) is completely unprofessional, and gives all lawyers a bad name. I hope more courts and Bars crack down on this kind of behavior.

Is Retaliation Illegal? Sometimes

Lots of people approach me every week and say they feel they were retaliated against. I usually have to ask, "Retaliation for what?" I think there's a basic misunderstanding of what retaliation is, and when it's illegal. The first part of the problem is understanding retaliation itself. Webster's defines retaliation as:

To do something bad to someone who has hurt you or treated you badly : to get revenge against someone

So retaliation = revenge.

The next issue, which is the core problem in retaliation cases, is whether what you did that was "bad" in your employer's eyes is something that is legally protected against retaliation. Here are some examples:

1. Complaining about your boss being incompetent: Your boss is pretty much guaranteed to retaliate if you complain about him to management. If you complain that he's incompetent, you have zero legal protection. He's allowed to exact his revenge. However, if you discuss with coworkers that your boss is a terrible manager and you go to his boss or HR to discuss improving your working conditions on behalf of yourself and your coworkers, then you may well be protected by the National Labor Relations Act.

2. Complaining about illegal activity: If you complain that a coworker or your boss is embezzling company funds, taking kickbacks or stealing company property, you probably have zero legal protection (if the company is publicly traded, you may have some protection as an SEC whistleblower, but most people have no protection). And I see it happen time after time, that an employee reports that a coworker is ripping the company off and they are retaliated against. However, if you complain that he's trying to make you defraud Medicaid or do something else that's illegal on behalf of the company, you may well be a protected whistleblower.

3. Complaining about bullying, hostile environment or harassment: Bullying is only illegal in Tennessee, and only if you're a government employee in Tennessee. Complaining about bullying comes with zero legal protection against retaliation. If you complain that you're in a hostile environment or being harassed, you're complaining about bullying. Again, zero legal protection. However, bullies tend to pick on the weak and the different. If you report that the bully is targeting you or others around you based on race, age, sex, national origin, religion, disability, pregnancy or other legally protected status, then you have legal protection against retaliation. You have to add the discrimination piece to have legal protection. 

The other possible legal protection if you complain about bullying is the National Labor Relations Act. If you discuss with coworkers that the bully is making life miserable and you go to management or HR to report this on behalf of coworkers and yourself (and you aren't a supervisor, and you are otherwise covered under the NLRA) then you may be legally protected against retaliation.

4. FMLA, worker's comp claims, disability accommodations: You do have legal protection against retaliation for seeking a remedy under many employment law statutes. If you take Family and Medical Leave, make a worker's comp claim or seek accommodations for a disability, you are likely protected against retaliation. However, if you just take sick time or vacation time, most states have no law protecting you against retaliation for that.

5. Complaining to police: If you're punched in the face by a coworker or threatened, most states don't legally protect you against retaliation for going to the police. However, EEOC says, in its latest guidance on retaliation, "it is protected opposition for an employee to contact the police seeking criminal prosecution of a coworker who engaged in a workplace assault motivated by disability, race, or sex, even though it is not a complaint to a manager or to a government agency that enforces EEO laws." So you're legally protected if your coworker punched you due to your religion or race. You're also legally protected if you file a police report about rape at work. 

6. Complaining to DOL, OSHA, EEOC: If you go to the Department of Labor to complain about unpaid overtime, OSHA to complain about workplace safety issues or EEOC to file a charge of discrimination, you are always legally protected against retaliation.

So you can see that retaliation is mostly legal. However, in many situations it only takes a little change in your complaint or activity to be legally protected against retaliation. The way you complain makes all the difference. Think carefully before you make a complaint at work if you want to prevent retaliation.

Can My Employer Trash Me In References? 6 things you need to know about job references

Suzanne Lucas, better known as the Evil HR Lady (she's very nice and not evil at all), did an interesting article about what employers are saying about former employees in references. Hint: It's not good.

Lucas says this: "Reference-checking firm Allison & Taylor estimates that 50 percent of their reference checks come back negative or lukewarm." If you want to chill your blood, read the article for some actual things employers have said about employees.

In my AOL Jobs column, I answer a reader question about whether or not employers can trash employees in job references. You can read it here.

I'm totally slammed at work, so that's it for now. Please don't forget that the ABA Blawg 100 is asking for your votes for your favorite blog in the Labor and Employment category. If you think this blog is worthy, I continue to need your vote. Go to the ABA website here. It takes about 30 seconds to register. Then go to the Labor & Employment category. Find Screw You Guys, I'm Going Home. Look to the left and you'll see a button that says, "Vote Now." Click it. You're done. The polls shut down at close of business Dec. 20. If you have trouble voting or questions about anything else, please see the ABA's Blawg 100 FAQ.

HR Says They Lost My Resume But I Think It's Age Discrimination

This was a question on my post I Reported Harassment and Now HR Wants to Meet With Me. What Do I Do?

I need some help here. I have worked for a company for 10 years. A position opened up and I applied for it. Soon after, the director said they are looking into it and a few days later a guy i trained who is younger than I am got hired. After that another position became available. I applied for it and was told they are looking into it and almost every day the director came to me and said they are looking into it. Also, HR says they never got my resume. Now mind you, this is the second time he told me HR never got my resume. I never received an email or call for this position. They kept saying.HR dropped the ball on this. I was told twice to apply to the position and.both times HR messed up. There are also 2 other guys in the same race class Ii am that got fired or moved for complaining and one of the guys filed a discrimination case against the director. Now they hired someone for the position I applied for that has no experience and I have to.train him. Is.there something I can do? 

 Roy P.

Roy, it sure sounds like you either have the most incompetent HR department around or someone is deliberately jerking you around.  I'd bet on the latter. If you are more qualified than the person who got the job, and the person hired is younger than you, then you may well have an age discrimination claim. I'd definitely suggest talking to an employment lawyer in your state about it.

Now, let's talk about some practical things you can do the next time you see a promotion you want to apply for. I'd suggest taking some steps to make sure your resume gets where it belongs:

• Send your resume directly to HR: Don't hand it to your boss, who is probably chucking it in the garbage or sending it to HR via turtle. Instead, find out who is in charge of HR and email, fax or hand deliver it to them. 
• Get proof: Make sure you send it in a way that provides proof they got it. If you fax, keep a copy of the transmission receipt. If you email, send it so you get a read receipt and a delivery receipt. If you hand-deliver it, write down the name of the person you handed it to, along with the date and time.
• Send a copy to the boss: If the director is someone who is supposed to be doing the screening, then make sure he gets a copy, again with proof of delivery.
• Follow up in writing: If you haven't heard anything in a week or so, follow up with a brief email asking them to confirm they received it.
• Update your resume: It's possible your resume is outdated or doesn't reflect all your skills and training. Make sure it accurately reflects your qualifications.

If you think your boss is the one who is tossing your resume, then you might want to report him to HR in writing. Call it a "Formal Complaint of Age Discrimination" and tell them why you think you are the most qualified, how your boss claimed HR lost the resume and you couldn't be considered, and ask them to investigate.

It does sound like the company has a history of retaliation. If they retaliate against you, it might be time to contact an employment lawyer or EEOC.

Beware the Dark Side: "But For" Doesn't Mean "Sole Cause" In Retaliation Claims

The management-side bar celebrated when the Supreme Court ruled in University of Texas Southwestern Medical Center v. Nassar that Title VII retaliation claimants must prove that retaliation was not just a motivating factor, but the "but for" cause of the retaliation. While I'm all for a good celebration, I wouldn't break out the champagne yet if I were on the dark side. (Heaven forbid. As Luke Skywalker said, "Never. I'll never turn to the Dark Side.")

For any type of discrimination other than age, and now retaliation, employees must prove that discrimination was either a substantial or a motivating factor in whatever action the employer took against them. This leads to a tortured analysis the courts use in "mixed motive" cases, where the employer had more than one reason for their actions. If the employee proves discrimination was a substantial or motivating factor, the employer can show (not actually prove, mind you) a legitimate reason for their actions. Then the employee must prove (not just show) that the reason given was pretextual (phony, made up, a load of cr**), and that the real reason was discrimination. Then the employer gets to come back and prove it would have made the same decision even if it hadn't discriminated. Whew! That's a whole lot of confusion to explain to a jury, and I'm over-simplifying it. No wonder employers like it. But having a confusing standard wasn't enough for the dark side.

Instead, they pushed the courts to establish an even tougher standard. What the Supreme Court came up with in Nassar was the "but for" standard. That is, but for the discrimination, the employer wouldn't have fired, demoted, refused to hire, etc. The majority opinion refers to "but for" as a tougher standard. But is it really? The dark side will try to claim that it means "sole cause." It doesn't.

Chief Justice Roberts (along with 3 of his conservative compatriates) complained in 2011 in CSX Transportation, Inc. v. McBride that the jury instruction the majority approved was the "but for" standard. He says, "The test the Court would substitute—whether negligence played any part, even the slightest, in producing the injury—is no limit at all. It is simply 'but for' causation.' He describes this scenario to demonstrate what he believes "but for" causation is:

For instance, if I drop a piano from a window and it falls on a person, there is no question that I was negligent and could have foreseen that the piano would hit some­one—as, in fact, it did. The problem for the Court’s test arises when the negligence does not directly produce the injury to the plaintiff: I drop a piano; it cracks the side­walk; during sidewalk repairs weeks later a man barreling down the sidewalk on a bicycle hits a cone that repairmen have placed around their worksite, and is injured. Was I negligent in dropping the piano because I could have foreseen 'a mishap and injury?' Yes. Did my  negligence cause “[the] mishap and injury” that resulted? It depends on what is meant by cause. My negligence was a “but for” cause of the injury: If I had not dropped the piano, the bicyclist would not have crashed. 

(citations omitted). He goes on to explain why he thinks the Court should impose more than "but for" causation. Yet Justice Roberts and the other three dissenters in CSX agreed with the majority in imposing "but for" causation in retaliation claims.

The instruction the Court in CSX approved was this: "Defendant ‘caused or contributed to’ Plaintiff’s injury if Defendant’s negligence played a part—no matter how small—in bringing about the injury." The majority commented that the cases CSX cited were proven by more than the "mere 'but for' causation." They rejected the concern that juries might utilize "far out 'but for' scenarios."

Does this "but for" standard sound like something that an employment plaintiff will have a hard time proving? Not to me. Will the four dissenters in CSX agree that this instruction fulfills their "but for" standard in retaliation cases? I'd certainly argue this is the instruction now applicable to retaliation cases.

You don't have to believe me on this. Courts interpreting "but for" in discrimination cases have said this about the standard:

• “[T]he plaintiff's age must have 'actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome.'"
• Statutory language “merely imposes a ‘but for’ liability standard” requiring showing only that the protected classification was “a determinative, rather than the sole, decision making factor.” 
• “But-for” causation is defined as “a factor that made a difference in the outcome.” 

Let's look at how this should apply in a real retaliation case. Joe complains about being sexually harassed by a coworker. His supervisor wants to protect the coworker, so starts looking at Joe's work with a fine tooth comb. Joe is written up for picky things that his coworkers also do. He's fired for having 3 write-ups in a 90 day period. Sure, the picky violations are a "but for" cause. However, so is the retaliation. But for the supervisor's determination to retaliate, he wouldn't have started writing Joe up for these violations.

Here's another example. Jane complains about age discrimination. The company decides to get rid of her, so they audit all her recorded customer calls. They wouldn't normally have done the audit. They discover a call where she got terse with a customer and hung up. They fire her for violating standards of customer service. But for the age discrimination, she wouldn't have complained. But for the complaint, they wouldn't have done the audit. But for her violation, she wouldn't have been fired (or they'd have kept digging for something else). In my opinion, Jane wins on both the age and retaliation claims under the "but for" standard. She might not have won under the "mixed motive" standard. In this case, the Supreme Court may have done Jane a favor.

We'll have to see how this all plays out, but any defense lawyer who argues that "but for" means "sole cause" should be subject to sanctions for making a frivolous argument. I'd love to hear from any employee-side attorneys who manage to smack down such a silly argument. Does this mean that management-side won't try to push "sole cause?" No. Will the courts buy it? Stay tuned.I'll let you know if I hear of any cases on this one way or the other post-Nassar.

In the meantime, don't be afraid of the "but for" standard. Embrace it. As Yoda said, "Fear is the path to the Dark Side. Fear leads to anger, anger leads to hate, hate leads to suffering." Better yet, he said, "The fear of loss is a path to the Dark Side." So embrace the Force, and keep fighting the good fight.

Firing Employees Because Obama Was Elected May Be a Felony

I wrote before the election about a group of CEOs who, prompted by their candidate, sent a series of threats to employees that, if President Obama were reelected, they'd have no choice but to (pick one) a. shut down, b. do layoffs, or c. move to another country. I wondered the day after the election why there hadn't been a wave of corporate shutdowns. But one guy actually did what he threatened.

A guy named "David" called into a radio show and said he had laid off 22 of his "mostly Hispanic" employees as a result of the election. He complained they had worn Obama shirts to work. He said, "I explained that to them, and I said, ‘You do what you feel you need to do, but I’m just letting you know this as a warning that this is things I have to think of as a business owner.’”
Raw Story (http://s.tt/1sB4T)

He said he felt comfortable he'd complied with the law. I think he's wrong.

Nevada has election laws that prohibit voter threats and intimidation.

NRS 293.710  Intimidation of voters.

1.  It is unlawful for any person, in connection with any election, petition or registration of voters, whether acting himself or herself or through another person in his or her behalf, to:

(e) Discharge or change the place of employment of any employee with the intent to impede or prevent the free exercise of the franchise by such employee.

2.  A person who violates a provision of this section is guilty of a category E felony and shall be punished as provided in NRS 193.130.

This guy, like the rest of the CEOs who made threats, is clearly firing employees because he believes they voted for President Obama. He may have committed a felony under Nevada law as a result.

If he targeted only Hispanics in his hissy fit, he may also have violated Title VII.

I hope some of his employees find an employment lawyer (or a friendly prosecutor) to pursue this. So, David, how does it feel to have confessed to a crime on the air? I hope it turns out that you have plenty of time to enjoy some free accommodations on the taxpayers' dime.

Can My Boss Hold My FMLA Against Me?

I received this question from calistair:

I have MS, every 4th Friday I have to take off work for a treatment. I recently asked to take 2 hours of PTO on a Friday afternoon. My supervisor responded via email with "The remainder of the group has covered Fridays for you". When asked twice via email what she meant, she came to my desk and verbally stated "On the Fridays of your infusions" I said "Oh no, that's under FMLA". This is 2nd time she has used my FMLA time against me. The first time, we were discussing the department budget and she told me that my reduced work hours (32.5/week) was causing others to work OT, which in turn has caused our department to be over budget. What can I do?

Now, obviously the first thing I advise is to talk to an attorney in your state. I’ll give you some general information on FMLA, which will hopefully help point you in the right direction in the meantime.

Based on your question, it looks like you’re on intermittent leave. FMLA allows up to 12 weeks of total leave in a calendar year, so if you need every 4th Friday off you are using 13 days of FMLA, roughly 2 ½ weeks. You are certainly covered under the law for this, assuming the employer has at least 50 employees and you’ve been there at least a year. Some states also have medical leave laws which might provide more protection.

Here’s what an employer can and can’t do while you’re on FMLA leave:

PTO use: Your employer may require you to take paid leave concurrently with their unpaid FMLA leave. All forms of paid leave are treated the same. Paid leave taken concurrently with FMLA leave could include vacation time, paid personal leave, and paid sick and medical leave. The employer may waive any procedural requirements for the taking of paid leave and you are always entitled to their unpaid FMLA leave even if you do not meet the employer’s requirements for taking paid leave. If the employer is not making you use your PTO for the intermittent leave, you should be entitled to use it like anyone else.

Retaliation: The employer is not allowed to use your FMLA leave against you. They can’t write you up for poor attendance, ding you in performance evaluations for excessive absenteeism or for failing to perform while you were on leave, demote you or fire you for taking leave. However, if they discover performance issues or dishonesty while you’re on leave (say a coworker covering for you finds out you embezzled millions), then they can fire you or discipline you. If the supervisor is retaliating, you probably want to report this to HR, in writing, as a “Formal Complaint of FMLA Retaliation.”

These are the two parts of FMLA that seem to apply to your situation. Other things you might need to know about FMLA are:

Perfect attendance: Employers may deny you a perfect attendance award for taking FMLA leave if employees taking non-FMLA leave are treated the same.

Contact with health care provider: Your employer may communicate with your health care provider to get information required by the FMLA certification form. The employer’s designated representative to communicate with the health care provider must be a health care provider, human resource professional, leave administrator, or a management official, but cannot be the employee’s direct supervisor. Employers are prohibited from asking health care providers for information other than what is required by the certification form. If the employer determines that a medical certification is not complete or is insufficient, the employer must provide written notification to you of what information is lacking and give you seven calendar days to cure the issue. Employers may request a new medical certification each leave year for medical conditions that last longer than one year. Employers may request recertification of a continuing condition every six months.

Fitness for duty: An employer may require the certification to address your ability to perform the essential functions of your job. In the event that reasonable job safety concerns exist, an employer can require a fitness-for-duty certification before you may return to work when you take intermittent leave.

There are many more requirements and responsibilities under FMLA that may apply to you. These are some of the most common issues. I hope this helps. Good luck!

Boss Boinking Coworker, Playing Favorites? Too Bad, Say Courts

            Say you have a coworker, Don Dashing. He’s an idiot. A screw up. Yet he keeps getting promotions, the best leads, the best shifts. Your female boss, Dahlia Desperate, clearly plays favorites. You have your suspicions, and one day you walk in on Don and Dahlia doing the horizontal bop on Dahlia’s desk. Aha! you cry. Suspicion confirmed! You run to Human Resources and file a sexual harassment complaint.

            You tell them that Don got the promotion you were most qualified for. Dahlia never hit on you, but if she had, and you’d been the one lighting up Dahlia’s life, you’d have gotten the job. Sexual harassment. Clear and simple. If you’d had sex with Dahlia, you’d have the job.

            The HR lady looks concerned. She’ll investigate immediately. You’re fired the next day.

            Should you start shopping for beachfront property? Did you just win the lottery? Nope. You probably lose. Here’s why.

            Cases like this one are called sexual favoritism. The courts say that the boss can favor someone they’re having sex with. In most cases, sexual favoritism is perfectly legal.

            Ron Miller, of the Wolters Kluwer blog, recently posted about two new sexual favoritism cases. In one, Zimpher v. Aramark Management Services, our employee hero walked in on his boss’s afternoon delight with a coworker. He reported it and was fired. The court said that, because what happened wasn’t sexual harassment, when he reported it he wasn’t protected from retaliation. Why wasn’t it sexual harassment or sex discrimination? Because the conduct he reported wasn’t directed at him or his status as a man. (Had he filed with EEOC, he’d have been protected from retaliation, even though he’d have had no basis for filing the charge of discrimination, but that’s another ridiculous part of employment law I’ll save for another post).

            In the other recent case, a woman complained about a sexual relationship in the workplace and was also retaliated against. Too bad, said the court. Since the affair and favoritism affected everyone, no matter their sex, it wasn’t sexual harassment. Because it wasn’t sexual harassment, she wasn’t protected from retaliation.

            This isn’t to say that all sexual favoritism is legal. The EEOC has issued a Policy Guidance (that the Courts can ignore if they want to) saying when it thinks sexual favoritism crosses the line. To summarize:

o   Boss plays favorites with consensual lover: legal;

o   Boss plays favorites with lover who was bullied into the relationship in exchange for favoritism: may be sexual harassment for other employees of the same gender as the lover;

o   Favoritism based on sexual favors in the workplace is widespread: may be sexual harassment for other employees of both genders.

o   Isolated instances of sexual favoritism: legal.

But, you argue, treating women (or men) as sexual playthings is discrimination, isn’t it? It’s demeaning to their gender. If the women who boink their supervisors get promoted, doesn’t that send the message to other women that sex is the only way to get ahead in the workplace? Yep. I agree. So far, many courts don’t agree. I won’t get into the legalese on this, but I can direct you to an excellent law review article on the topic if you want more information. Basically, it comes down to what state you live in. For instance, if you’re in California then some sexual favoritism is illegal. In my home state, Florida, it probably is not.

Sexual harassment cases are getting harder and harder to win (again, I’ll save it for another post). If you report something you think is sexual harassment to HR and it turns out not to have been sexual harassment, the employer is allowed to retaliate. If you fail to report sexual harassment and go straight to EEOC instead, your employer has a complete defense to your sexual harassment lawsuit. Catch-22 personified.

There oughta be a law . . .