Everyone tells me they know their employee rights. Some are even dumb enough to tell their employers they know their rights. The problem is, most of you are getting your legal information from courtroom TV shows or coworkers who know less than you do. Before you mouth off about your rights, here are some laws that most employees think exist - that don't.
• Wrongful termination
If you live in Montana, your employer can only fire you for just cause. Otherwise, they can fire you for any reason or no reason at all. They don’t have to have a good reason. They don’t even have to give a reason in most states. Arizona has a law based on the Montana law, but they took the "just cause" (and some other pro-employee stuff)out of it.
• Right to your file
No federal law requires private employers to allow employees to inspect or copy their own personnel files. Some states require employers to allow you to look at your file. Fewer 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.
• 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 law 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 if your employer is big enough. Some states also offer protection for nursing moms taking breaks.
• Hostile environment/harassment
Hostile work environment is not illegal. Harassment is not illegal. Bullying is not illegal. Hostile work environment or harassment due to race, age, sex, religion, national origin, disability, color, taking Family and Medical Leave, whistleblowing, or some other legally-protected status is illegal.
• Free speech
Only government employees have free speech protections, and those are very limited. You can be fired for your speech in the workplace or outside the workplace if you work for a private employer. 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.
• Privacy
There is no law giving you privacy in your work emails or internet usage. If your employer is going to listen into or record phone calls, there are legal restrictions. You also have privacy rights in your medical information. There is no federal law protecting your social security number, but California and New York do offer limited protection against employers displaying your number.
• Right to work
Right to work doesn’t mean your employer can’t make you sign a non-compete agreement or 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 company tells you that signing a noncompete agreement is meaningless or that it won’t be enforced, they are lying to you.
• Retaliation
There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or jerkish behavior. Only if you do something that puts you in a legally protected category are you protected from retaliation. Examples would be objecting to discrimination, making a worker’s comp claim, or taking Family and Medical Leave.
• Discrimination
Discriminating against you for being you is never illegal. Favoritism, nepotism, being a jerk, are not illegal. Discrimination based on age, race, sex, religion, national origin, disability, color and genetic information are illegal.
• Individual liability
As much as it may give you joy to sue your 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 laws simply don’t allow it. The one 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 time for them to actually be passed. Email your congressperson and state representative now and complain if you don't like the fact that you're not protected. Here are some places to find out how to contact your representative in Congress:
http://www.contactingthecongress.org/
http://www.congress.org
Here's a website with contact information for elected officials at the state and federal level:
http://www.usa.gov/Contact/Elected.shtml
Thursday, February 17, 2011
Thursday, February 10, 2011
Yippee - I Can Insult My Boss on Facebook Now!
You’ve probably heard about the case the National Labor Relations Board brought against a company for disciplining an employee based on insults she posted on her Facebook page about her boss. Well, it settled. So I expect to hear about a bunch of employees posting nasty comments about their bosses on Facebook, tweeting about how awful management is, and then wondering why the heck they were fired.
Please, please don’t post anything in social media you don’t want on the front page of the company newsletter. Don’t get yourself fired over something stupid.
The National Labor Relations Act and Concerted Activity
In re American Medical Response of Connecticut, Inc., Case No. 34-CA-12576 (October 27, 2010), is where the NLRB claimed a company violated the “concerted activity” provision of the National Labor Relations Act (NLRA). I personally like this provision a lot because it applies whether or not the company has a union, and covers pretty much every workplace. HR people and management-side lawyers don’t like to talk about it because it covers anything employees do for mutual aid or protection.
Here’s what it says: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.
If you’re complaining about working conditions, not just your own but also those of your coworkers, you’re possibly protected from retaliation under the National Labor Relations Act. Does that mean you should rush to post what a jerk your boss is? No. Not unless you want to be fired.
The Facebook Case and the Facts
The NLRB’s settlement of this case doesn’t mean that you’re necessarily protected. The facts of the case were not unusual, but they might not apply to you.
The company had a policy that prohibited: “disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.” It also prohibited employees from depicting the company in any way in social media. That’s pretty broad. Part of the NLRB’s beef was that the restriction was too broad. The settlement was, in part, that the company would “revise its rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work.” The company also agreed that it “would not discipline or discharge employees for engaging in such discussions.”
Granted, the employee’s comments were pretty outrageous: "looks like I'm getting some time off. love how the company allows a 17 (company term for psychiatric patient) to become a supervisor," and saying the boss was "being a d***" and a "scum***." The company said she was rude and unprofessional, and violated their internet policy. Her coworkers then weighed in with comments supporting her and with further negative comments about the supervisor.
A big reason the NLRB found her activities protected was the fact that it resulted in comments from coworkers. If you post something just to vent and it doesn’t result in a discussion with coworkers, you’re probably not in the same boat. So tweeting that your boss is a jerk when your coworkers don’t follow you or comment is probably not going to be treated the same way.
Protesting Working Conditions Might Be Protected
While this wasn’t the first case involving protected comments, it was the first involving social media. Other cases where employee comments about working conditions were protected are where an employee was fired for criticizing unpaid two-hour sales meetings (also probably protected under the Fair Labor Standards Act and some other whistleblower laws, by the way); employees terminated for sending a letter protesting working conditions and that they were being told to spend large amounts of time on the company president’s pet project; and an employee who got a written warning for objecting to a supervisor’s lecture about radio headset volume.
So yes, protesting poor working conditions may well be protected under the National Labor Relations Act.
Why You Should Keep Your Mouth Shut
I still suggest you shut your mouth about any complaints you have, especially in social media. There are just too many ways you can mess yourself up, and the law has too many loopholes to give you much aid and comfort.
Intention is key: Your intent is all-important. If your employer thinks your intent was to retaliate, damage your boss’s reputation, damage the company, or anything but to improve working conditions, then you’re probably going to have to file for unemployment.
No solo act: Your comments have to be part of “concerted activity,” which is defined as “being engaged in with, or on the authority of, other employees, and not solely by and on behalf of the employee himself.” If you go it alone, you do it at your peril.
You might not be protected: There are also lots of exclusions, so many employees aren’t protected. Since the NLRA is meant mostly to protect attempts to unionize, supervisors, independent contractors (yeah, yeah, most employers get this wrong), domestic workers, agricultural workers, family member employees, managerial and confidential employees aren’t protected. If you’re high enough up, you can’t gripe and get away with it.
The company policy might be okay: The NLRB has found other provisions in employer policies didn’t violate the Act. For instance, in one case language that prohibited “disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects” was allowed.
Bullying and harassment is legal: Let’s not forget that there’s still not a single state in the U.S. that has passed a law against workplace bullying. My post with further information about harassment and bullying is here. Bottom line is that a bully boss still has the power to discipline you, decide whether you get raises or promotions, and make your life miserable. Why tick him or her off if you aren’t protected from retaliation?
No free speech at work: The First Amendment doesn’t protect you unless you work for the government. There’s no free speech in corporate America. My post about what you can and should complain about at work and still be protected is here.
But I’m Sure My Company Did Something Illegal
So you think you were fired or disciplined for criticizing your boss, and you’re pretty sure you are protected. Don’t sit on your rights. You only have 6 months to file a complaint with the NLRB.
They will investigate to determine whether or not there’s cause for your charge. They may interview you, at work if you’re still there. You can have a union rep or coworker present with you. A report then goes to the Regional Director, who decides whether or not the case will go forward. Mostly, the cases are dismissed. Only about 1/3 go forward.
If you’re dismissed, you can appeal to the General Counsel’s office.
If the Regional Director finds reasonable cause, then they’ll first try to settle it. About 90% of the cases settle at this stage. If it doesn’t settle, it goes before an Administrative Law Judge and NLRB staff counsel will represent you. You can also have a private lawyer with you, but the lawyer’s role is limited since the case is not yours but the NLRB’s.
If you win, you can get reinstatement, back pay and interest. You cannot get emotional distress or attorney’s fees. The judge can also order that the employer cease and desist their illegal practices.
When in doubt, contact an employment lawyer in your state to get more information about your rights.
Please, please don’t post anything in social media you don’t want on the front page of the company newsletter. Don’t get yourself fired over something stupid.
The National Labor Relations Act and Concerted Activity
In re American Medical Response of Connecticut, Inc., Case No. 34-CA-12576 (October 27, 2010), is where the NLRB claimed a company violated the “concerted activity” provision of the National Labor Relations Act (NLRA). I personally like this provision a lot because it applies whether or not the company has a union, and covers pretty much every workplace. HR people and management-side lawyers don’t like to talk about it because it covers anything employees do for mutual aid or protection.
Here’s what it says: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.
If you’re complaining about working conditions, not just your own but also those of your coworkers, you’re possibly protected from retaliation under the National Labor Relations Act. Does that mean you should rush to post what a jerk your boss is? No. Not unless you want to be fired.
The Facebook Case and the Facts
The NLRB’s settlement of this case doesn’t mean that you’re necessarily protected. The facts of the case were not unusual, but they might not apply to you.
The company had a policy that prohibited: “disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.” It also prohibited employees from depicting the company in any way in social media. That’s pretty broad. Part of the NLRB’s beef was that the restriction was too broad. The settlement was, in part, that the company would “revise its rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work.” The company also agreed that it “would not discipline or discharge employees for engaging in such discussions.”
Granted, the employee’s comments were pretty outrageous: "looks like I'm getting some time off. love how the company allows a 17 (company term for psychiatric patient) to become a supervisor," and saying the boss was "being a d***" and a "scum***." The company said she was rude and unprofessional, and violated their internet policy. Her coworkers then weighed in with comments supporting her and with further negative comments about the supervisor.
A big reason the NLRB found her activities protected was the fact that it resulted in comments from coworkers. If you post something just to vent and it doesn’t result in a discussion with coworkers, you’re probably not in the same boat. So tweeting that your boss is a jerk when your coworkers don’t follow you or comment is probably not going to be treated the same way.
Protesting Working Conditions Might Be Protected
While this wasn’t the first case involving protected comments, it was the first involving social media. Other cases where employee comments about working conditions were protected are where an employee was fired for criticizing unpaid two-hour sales meetings (also probably protected under the Fair Labor Standards Act and some other whistleblower laws, by the way); employees terminated for sending a letter protesting working conditions and that they were being told to spend large amounts of time on the company president’s pet project; and an employee who got a written warning for objecting to a supervisor’s lecture about radio headset volume.
So yes, protesting poor working conditions may well be protected under the National Labor Relations Act.
Why You Should Keep Your Mouth Shut
I still suggest you shut your mouth about any complaints you have, especially in social media. There are just too many ways you can mess yourself up, and the law has too many loopholes to give you much aid and comfort.
Intention is key: Your intent is all-important. If your employer thinks your intent was to retaliate, damage your boss’s reputation, damage the company, or anything but to improve working conditions, then you’re probably going to have to file for unemployment.
No solo act: Your comments have to be part of “concerted activity,” which is defined as “being engaged in with, or on the authority of, other employees, and not solely by and on behalf of the employee himself.” If you go it alone, you do it at your peril.
You might not be protected: There are also lots of exclusions, so many employees aren’t protected. Since the NLRA is meant mostly to protect attempts to unionize, supervisors, independent contractors (yeah, yeah, most employers get this wrong), domestic workers, agricultural workers, family member employees, managerial and confidential employees aren’t protected. If you’re high enough up, you can’t gripe and get away with it.
The company policy might be okay: The NLRB has found other provisions in employer policies didn’t violate the Act. For instance, in one case language that prohibited “disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects” was allowed.
Bullying and harassment is legal: Let’s not forget that there’s still not a single state in the U.S. that has passed a law against workplace bullying. My post with further information about harassment and bullying is here. Bottom line is that a bully boss still has the power to discipline you, decide whether you get raises or promotions, and make your life miserable. Why tick him or her off if you aren’t protected from retaliation?
No free speech at work: The First Amendment doesn’t protect you unless you work for the government. There’s no free speech in corporate America. My post about what you can and should complain about at work and still be protected is here.
But I’m Sure My Company Did Something Illegal
So you think you were fired or disciplined for criticizing your boss, and you’re pretty sure you are protected. Don’t sit on your rights. You only have 6 months to file a complaint with the NLRB.
They will investigate to determine whether or not there’s cause for your charge. They may interview you, at work if you’re still there. You can have a union rep or coworker present with you. A report then goes to the Regional Director, who decides whether or not the case will go forward. Mostly, the cases are dismissed. Only about 1/3 go forward.
If you’re dismissed, you can appeal to the General Counsel’s office.
If the Regional Director finds reasonable cause, then they’ll first try to settle it. About 90% of the cases settle at this stage. If it doesn’t settle, it goes before an Administrative Law Judge and NLRB staff counsel will represent you. You can also have a private lawyer with you, but the lawyer’s role is limited since the case is not yours but the NLRB’s.
If you win, you can get reinstatement, back pay and interest. You cannot get emotional distress or attorney’s fees. The judge can also order that the employer cease and desist their illegal practices.
When in doubt, contact an employment lawyer in your state to get more information about your rights.
Sunday, January 23, 2011
The Genetic Information Nondiscrimination Act and The Mentalist
A recent episode of The Mentalist showed the very first violation of the Genetic Information Non-Discrimination Act (GINA) that I’ve seen on TV. If you don’t know about GINA, it’s the law that says employers can’t discriminate based upon the genetic information of an employee. I think The Mentalist crossed that line in the latest episode. I talked about this from a writer’s perspective previously. But now, wearing my lawyer hat, I want to talk about why it’s a violation.
GINA says:
(a) Discrimination Based on Genetic Information.--It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or
(2) to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.
The writers didn’t mean to have their character violate the law. But they did it all the same. In the latest plotline, Internal Affairs is investigating the department because a very bad guy burst into flames in his jail cell. He needed killing, as any one of the cops would tell you. This episode focused on CBI Agent Rigsby. I won’t rant about the fact that he was meeting with the IA investigator without his union rep (it’s wrong, wrong, wrong!). Okay, a little rant.
No, this rant is about the fact that the investigator looked into Rigsby’s past and found that his father had quite a colorful criminal past. The investigator then announced that criminal behavior can be genetic and that he was looking into Rigsby as a result of his association with his father. Hello? Can you say lawyers and lawsuits?
The term “genetic information” is defined under the Act as:
(A) In general.--The term “genetic information” means, with respect to any individual, information about--
(i) such individual’s genetic tests,
(ii) the genetic tests of family members of such individual, and
(iii) the manifestation of a disease or disorder in family members of such individual.
Here, the investigator decided that Rigsby’s father’s criminal behavior was a manifestation of a genetic disorder. Once the investigator decided that Rigsby’s father, and therefore Rigsby, had a genetic condition, he can’t discriminate against him because of it. Specifically, he can’t “classify [him] in any way that would deprive or tend to deprive [him] of employment opportunities or otherwise adversely affect the status of the employee . . . .” That includes putting him under the microscope in an investigation, questioning him about other incidents from years ago, and harassing him.
I adore Simon Baker and will continue watching just for his smile (and the mostly excellent writing) but please stop this ridiculous plot line (and for God’s sake, get Rigsby a union rep) before I throw a shoe at the TV screen.
From a lawyer’s perspective, I hate it when shows get the law wrong because my clients learn what they know about employment law from TV way more than they learn it from reading their handbooks or (sadly) this blog. And most shows get this stuff laughably wrong. So, dear workers of the world, it’s fiction! Don’t rely on TV shows for legal advice. Ever.
GINA says:
(a) Discrimination Based on Genetic Information.--It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or
(2) to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.
The writers didn’t mean to have their character violate the law. But they did it all the same. In the latest plotline, Internal Affairs is investigating the department because a very bad guy burst into flames in his jail cell. He needed killing, as any one of the cops would tell you. This episode focused on CBI Agent Rigsby. I won’t rant about the fact that he was meeting with the IA investigator without his union rep (it’s wrong, wrong, wrong!). Okay, a little rant.
No, this rant is about the fact that the investigator looked into Rigsby’s past and found that his father had quite a colorful criminal past. The investigator then announced that criminal behavior can be genetic and that he was looking into Rigsby as a result of his association with his father. Hello? Can you say lawyers and lawsuits?
The term “genetic information” is defined under the Act as:
(A) In general.--The term “genetic information” means, with respect to any individual, information about--
(i) such individual’s genetic tests,
(ii) the genetic tests of family members of such individual, and
(iii) the manifestation of a disease or disorder in family members of such individual.
Here, the investigator decided that Rigsby’s father’s criminal behavior was a manifestation of a genetic disorder. Once the investigator decided that Rigsby’s father, and therefore Rigsby, had a genetic condition, he can’t discriminate against him because of it. Specifically, he can’t “classify [him] in any way that would deprive or tend to deprive [him] of employment opportunities or otherwise adversely affect the status of the employee . . . .” That includes putting him under the microscope in an investigation, questioning him about other incidents from years ago, and harassing him.
I adore Simon Baker and will continue watching just for his smile (and the mostly excellent writing) but please stop this ridiculous plot line (and for God’s sake, get Rigsby a union rep) before I throw a shoe at the TV screen.
From a lawyer’s perspective, I hate it when shows get the law wrong because my clients learn what they know about employment law from TV way more than they learn it from reading their handbooks or (sadly) this blog. And most shows get this stuff laughably wrong. So, dear workers of the world, it’s fiction! Don’t rely on TV shows for legal advice. Ever.
Saturday, January 1, 2011
Retaliation Against Whistleblowers - When Are You Protected?
While it may be satisfying to complain about your boss, the truth is, complaining can and will get you fired. While most people think we have free speech in this country, there’s no First Amendment in the private workplace. If you work for government, you do have free speech rights, but they are limited. Sassing your boss or saying she’s incompetent is not protected speech.
If the company is violating the law – Medicare fraud, ripping off the government, failing to pay taxes, failing to pay wages, discriminating, polluting, etc., there are a host of whistleblower laws that may protect you. You need to find out which law protects you and make sure you complain in a way that’s protected. Some laws require you complain in writing to a supervisor. Some say you have to report the company to a government agency. Some only require that you object to or refuse to participate in the illegal activity. If you get it wrong, you aren’t protected from retaliation.
Think about these questions to see if you might be a whistleblower. These are just some examples of activities that might be protected.
1. Have you recently objected to any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?
Under many whistleblower laws, but not all, your objection may have to be in writing. But an objection to a breach of the employer’s policies, or to an ethical violation, is generally not protected whistleblowing. While writing your long letter venting about every way the workplace is unprofessional may be satisfying, it can get you fired.
The objection most likely has to be to an activity, policy or practice of the employer. If you object to a coworker stealing from the company, it’s probably not protected. What would be protected is objection to failure to pay overtime, discrimination based on a protected category (race, age, sex, religion, national origin, marital status, disability, color and, in a couple of counties, sexual orientation), safety violations governed by OSHA, or almost any other legal violation. Statutes, government regulations, and county/city ordinances would fall in this category.
Even if the objection doesn’t need to be in writing, I suggest you put it in writing so the employer can’t deny you made the objection later.
2. Have you recently refused to participate in any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?
If the employer asks you to do something actually illegal, whistleblower laws applying to your industry may say you can refuse and you are protected. But I still suggest you put your refusal in writing.
3. Have you recently disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation?
You may be protected if you have, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and have given the employer a reasonable opportunity to correct the activity, policy, or practice. Examples would be making a formal written complaint of discrimination based on, say, sex. The formal complaint would say that, if the situation is not promptly resolved, you intend to file a charge of discrimination with EEOC. Then you could invoke this provision after giving them time to fix the situation.
4. Have you recently provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer?
If you give information to the police, unemployment, EEOC, OSHA, a legislative body, or other entity actually doing an investigation of an illegal practice, you may well be a protected whistleblower.
The Whistleblower Laws
The remedies, requirements, and administrative hoops are the subject of entire treatises, so I’ll just draw your attention to some of the major whistleblower laws.
The federal whistleblower laws are:
The OSHA –enforced laws govern protection of workers against retaliation for complaining to employers, unions or the Occupational Safety and Health Administration (OSHA), or other government agencies about unsafe or unhealthful conditions in the workplace, the environment, some public safety hazards, some securities fraud violations.
OSHA enforces these anti-retaliation laws:
Occupational Safety & Health Act (OSH Act), 29 USC § 660(c)
Surface Transportation Assistance Act (STAA), 49 USC § 31105
Asbestos Hazard Emergency Response Act (AHERA), 15 USC § 2651
International Safety Container Act (ISCA), 46 USC App. § 1506
Energy Reorganization Act of 1974 (ERA), 42 USC § 5851
Clean Air Act (CAA), 42 USC § 7622
Safe Drinking Water Act (SDWA), 42 USC § 300j-9(i)
Federal Water Pollution Control Act (FWPCA), 33 USC § 1367
Toxic Substances Control Act (TSCA), 15 USC § 2622
Solid Waste Disposal Act (SWDA), 42 USC § 6971
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 USC § 9610
Wendell H. Ford Aviation Investment and Reform Act (AIR21), 49 USC § 42121
Sarbanes-Oxley Act (SOX), 18 USC § 1514A
Pipeline Safety Improvement Act (PSIA), 49 USC § 60129
Federal Railroad Safety Act (FRSA), 49 USC § 20109
National Transit Systems Security Act (NTSSA), 6 U.S.C. §1142
Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. §2
Affordable Care Act (ACA), P.L. 111-148
Sarbanes-Oxley is the most famous OSHA-enforced whistleblower law. It protects employees of publicly-traded corporations from retaliation for reporting violations of SEC rules and federal laws regarding fraud against shareholders.
The Whistleblower Protection Act protects Federal employee whistleblowers.
Military Whistleblower Protection Act protects whistleblowers in the U.S. military
False Claims Act (FCA), which enables a private citizen to file a lawsuit in on behalf of the U.S. Government for fraud by contractors and other businesses that use federal funds. Qui Tam prohibits an employer from retaliating against an employee for attempting to report fraud against Medicare, Medicaid, FDA, GSA, HUD, USDA, U.S. Postal Service, NIH and the military, but not the IRS.
States that have whistleblower protection laws for most employees, government or private, are: Arizona, California, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, Ohio, Oregon, Rhode Island, and Tennessee.*
States that offer whistleblower protection to government, but not private employees are: Alabama, Alaska, Colorado, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Missouri, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, West Virginia, Washington, and Wisconsin.*
*State laws change all the time, as do federal laws. Talk to a lawyer in your state or do your research to make sure you're jumping through all the right hoops to be protected.
Other Types Of Retaliation
Here are some examples of other types of complaints where the law protects you from retaliation.
Discrimination: If you are the victim of discrimination or harassment based upon your race, age, sex, religion, national origin, color, disability, genetic information, association with a person in one of these categories, or another category that’s protected in your state/county/city (e.g., marital status or sexual orientation that aren’t protected by federal law), then you have to follow your employer’s published discrimination/harassment policy and report it.
Wage/overtime violations: If you’re terminated for objecting to failure to pay wages owed or failure to pay overtime, you may be protected from retaliation under the Fair Labor Standards Act or your state’s wage/hour laws.
Collective action to improve working conditions: The National Labor Relations Act protects employees from being retaliated against if they get together to try to improve the terms and conditions of their employment. So those letters employees sometimes do to complain against unfair treatment or bullying are supposed to be protected. The only problem is that many employers and management-side lawyers think this only applies to unionized workplaces (they’re wrong) and so they usually don’t hesitate to retaliate. Awareness was raised recently because the NLRB went after a company when it disciplined an employee for posting negative comments about a supervisor on Facebook and other coworkers chimed in. We’ll see how this case shakes out and whether it’s ultimately deemed a protected collective action. In the meantime, I’d avoid saying your boss is a jerk on Facebook or Twitter. Your remedies under this law aren’t the easiest to get or the best, but it’s something to hang your hat on and wave in front of the boss if they start threatening retaliation.
Deadlines/Statutes of Limitations
If you’ve been retaliated against, you may have short deadlines for bringing your complaint, and there may be some requirements you have to meet before you can sue. Here are some examples.
Sarbanes-Oxley: You must file a complaint with the U.S. Department of Labor within 90 days of the date you found out about the whistleblower discrimination, harassment or retaliation.
Other whistleblower claims: Statutes of limitations can be as short as 30 days for some whistleblowers protected under federal laws (e.g., environmental whistleblowers). State whistleblower laws vary, so be sure you know your deadlines.
Qui tam: Within the later of 6 years from the date of the violation; or
3 years after the government (or sometimes you) knows or should have known about the violation, but never longer than 10 years after the violation.
Donna’s tips:
a. If you’re going to complain about legal wrongdoing or discrimination, I suggest putting it in writing even if the employer’s policy says to have a meeting. You can present the written document at the meeting. That way you have proof that you complained about something that’s protected. Otherwise, HR will almost always say you complained about general harassment or unfair treatment, which isn’t protected.
b. If you complain, keep it professional and to the point. Avoid complaining about personality conflicts or incompetence. Stick to the facts that prove what’s happening is illegal.
c. HR is entitled to investigate your complaint. That means even if they have a policy of keeping your complaint confidential, your boss, the person you’re complaining about, and your witnesses and other coworkers will probably find out about it. Be prepared for that to happen, and be ready to report retaliation.
d. If you are retaliated against for reporting something illegal, put your complaint of retaliation in writing. If the retaliation doesn’t stop, or if you get fired, disciplined, demoted, or a pay cut as a result, contact an employment attorney.
e. If, after you complain, the situation is not fixed, contact an employment attorney for advice. But they don’t have to fire anyone or take any specific action, so don’t threaten to quit if they don’t fire the perpetrator.
f. If you’re complaining about a boss or coworker embezzling, stealing, or doing something TO the company, as opposed to on behalf of the company, you’re probably not protected from retaliation. You’d be surprised how many people get fired for reporting someone ripping off the company. Silly, yes, but there you have it. Killing the messenger is alive and well.
If the company is violating the law – Medicare fraud, ripping off the government, failing to pay taxes, failing to pay wages, discriminating, polluting, etc., there are a host of whistleblower laws that may protect you. You need to find out which law protects you and make sure you complain in a way that’s protected. Some laws require you complain in writing to a supervisor. Some say you have to report the company to a government agency. Some only require that you object to or refuse to participate in the illegal activity. If you get it wrong, you aren’t protected from retaliation.
Think about these questions to see if you might be a whistleblower. These are just some examples of activities that might be protected.
1. Have you recently objected to any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?
Under many whistleblower laws, but not all, your objection may have to be in writing. But an objection to a breach of the employer’s policies, or to an ethical violation, is generally not protected whistleblowing. While writing your long letter venting about every way the workplace is unprofessional may be satisfying, it can get you fired.
The objection most likely has to be to an activity, policy or practice of the employer. If you object to a coworker stealing from the company, it’s probably not protected. What would be protected is objection to failure to pay overtime, discrimination based on a protected category (race, age, sex, religion, national origin, marital status, disability, color and, in a couple of counties, sexual orientation), safety violations governed by OSHA, or almost any other legal violation. Statutes, government regulations, and county/city ordinances would fall in this category.
Even if the objection doesn’t need to be in writing, I suggest you put it in writing so the employer can’t deny you made the objection later.
2. Have you recently refused to participate in any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?
If the employer asks you to do something actually illegal, whistleblower laws applying to your industry may say you can refuse and you are protected. But I still suggest you put your refusal in writing.
3. Have you recently disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation?
You may be protected if you have, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and have given the employer a reasonable opportunity to correct the activity, policy, or practice. Examples would be making a formal written complaint of discrimination based on, say, sex. The formal complaint would say that, if the situation is not promptly resolved, you intend to file a charge of discrimination with EEOC. Then you could invoke this provision after giving them time to fix the situation.
4. Have you recently provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer?
If you give information to the police, unemployment, EEOC, OSHA, a legislative body, or other entity actually doing an investigation of an illegal practice, you may well be a protected whistleblower.
The Whistleblower Laws
The remedies, requirements, and administrative hoops are the subject of entire treatises, so I’ll just draw your attention to some of the major whistleblower laws.
The federal whistleblower laws are:
The OSHA –enforced laws govern protection of workers against retaliation for complaining to employers, unions or the Occupational Safety and Health Administration (OSHA), or other government agencies about unsafe or unhealthful conditions in the workplace, the environment, some public safety hazards, some securities fraud violations.
OSHA enforces these anti-retaliation laws:
Occupational Safety & Health Act (OSH Act), 29 USC § 660(c)
Surface Transportation Assistance Act (STAA), 49 USC § 31105
Asbestos Hazard Emergency Response Act (AHERA), 15 USC § 2651
International Safety Container Act (ISCA), 46 USC App. § 1506
Energy Reorganization Act of 1974 (ERA), 42 USC § 5851
Clean Air Act (CAA), 42 USC § 7622
Safe Drinking Water Act (SDWA), 42 USC § 300j-9(i)
Federal Water Pollution Control Act (FWPCA), 33 USC § 1367
Toxic Substances Control Act (TSCA), 15 USC § 2622
Solid Waste Disposal Act (SWDA), 42 USC § 6971
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 USC § 9610
Wendell H. Ford Aviation Investment and Reform Act (AIR21), 49 USC § 42121
Sarbanes-Oxley Act (SOX), 18 USC § 1514A
Pipeline Safety Improvement Act (PSIA), 49 USC § 60129
Federal Railroad Safety Act (FRSA), 49 USC § 20109
National Transit Systems Security Act (NTSSA), 6 U.S.C. §1142
Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. §2
Affordable Care Act (ACA), P.L. 111-148
Sarbanes-Oxley is the most famous OSHA-enforced whistleblower law. It protects employees of publicly-traded corporations from retaliation for reporting violations of SEC rules and federal laws regarding fraud against shareholders.
The Whistleblower Protection Act protects Federal employee whistleblowers.
Military Whistleblower Protection Act protects whistleblowers in the U.S. military
False Claims Act (FCA), which enables a private citizen to file a lawsuit in on behalf of the U.S. Government for fraud by contractors and other businesses that use federal funds. Qui Tam prohibits an employer from retaliating against an employee for attempting to report fraud against Medicare, Medicaid, FDA, GSA, HUD, USDA, U.S. Postal Service, NIH and the military, but not the IRS.
States that have whistleblower protection laws for most employees, government or private, are: Arizona, California, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, Ohio, Oregon, Rhode Island, and Tennessee.*
States that offer whistleblower protection to government, but not private employees are: Alabama, Alaska, Colorado, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Missouri, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, West Virginia, Washington, and Wisconsin.*
*State laws change all the time, as do federal laws. Talk to a lawyer in your state or do your research to make sure you're jumping through all the right hoops to be protected.
Other Types Of Retaliation
Here are some examples of other types of complaints where the law protects you from retaliation.
Discrimination: If you are the victim of discrimination or harassment based upon your race, age, sex, religion, national origin, color, disability, genetic information, association with a person in one of these categories, or another category that’s protected in your state/county/city (e.g., marital status or sexual orientation that aren’t protected by federal law), then you have to follow your employer’s published discrimination/harassment policy and report it.
Wage/overtime violations: If you’re terminated for objecting to failure to pay wages owed or failure to pay overtime, you may be protected from retaliation under the Fair Labor Standards Act or your state’s wage/hour laws.
Collective action to improve working conditions: The National Labor Relations Act protects employees from being retaliated against if they get together to try to improve the terms and conditions of their employment. So those letters employees sometimes do to complain against unfair treatment or bullying are supposed to be protected. The only problem is that many employers and management-side lawyers think this only applies to unionized workplaces (they’re wrong) and so they usually don’t hesitate to retaliate. Awareness was raised recently because the NLRB went after a company when it disciplined an employee for posting negative comments about a supervisor on Facebook and other coworkers chimed in. We’ll see how this case shakes out and whether it’s ultimately deemed a protected collective action. In the meantime, I’d avoid saying your boss is a jerk on Facebook or Twitter. Your remedies under this law aren’t the easiest to get or the best, but it’s something to hang your hat on and wave in front of the boss if they start threatening retaliation.
Deadlines/Statutes of Limitations
If you’ve been retaliated against, you may have short deadlines for bringing your complaint, and there may be some requirements you have to meet before you can sue. Here are some examples.
Sarbanes-Oxley: You must file a complaint with the U.S. Department of Labor within 90 days of the date you found out about the whistleblower discrimination, harassment or retaliation.
Other whistleblower claims: Statutes of limitations can be as short as 30 days for some whistleblowers protected under federal laws (e.g., environmental whistleblowers). State whistleblower laws vary, so be sure you know your deadlines.
Qui tam: Within the later of 6 years from the date of the violation; or
3 years after the government (or sometimes you) knows or should have known about the violation, but never longer than 10 years after the violation.
Donna’s tips:
a. If you’re going to complain about legal wrongdoing or discrimination, I suggest putting it in writing even if the employer’s policy says to have a meeting. You can present the written document at the meeting. That way you have proof that you complained about something that’s protected. Otherwise, HR will almost always say you complained about general harassment or unfair treatment, which isn’t protected.
b. If you complain, keep it professional and to the point. Avoid complaining about personality conflicts or incompetence. Stick to the facts that prove what’s happening is illegal.
c. HR is entitled to investigate your complaint. That means even if they have a policy of keeping your complaint confidential, your boss, the person you’re complaining about, and your witnesses and other coworkers will probably find out about it. Be prepared for that to happen, and be ready to report retaliation.
d. If you are retaliated against for reporting something illegal, put your complaint of retaliation in writing. If the retaliation doesn’t stop, or if you get fired, disciplined, demoted, or a pay cut as a result, contact an employment attorney.
e. If, after you complain, the situation is not fixed, contact an employment attorney for advice. But they don’t have to fire anyone or take any specific action, so don’t threaten to quit if they don’t fire the perpetrator.
f. If you’re complaining about a boss or coworker embezzling, stealing, or doing something TO the company, as opposed to on behalf of the company, you’re probably not protected from retaliation. You’d be surprised how many people get fired for reporting someone ripping off the company. Silly, yes, but there you have it. Killing the messenger is alive and well.
Monday, December 20, 2010
Arbitration Agreements - Yes Virginia, You May Have Given Up Your Rights
Arbitration agreements and waiver of right to trial pop up all over the place in employment situations. Some of the documents employers like to stick them to get you to sign away your right to sue are applications, handbooks, employment agreements, arbitration agreements, union contracts – just about any place they can think of to get you to sign without thinking.
Even if you have time to think about them, most states will let employers get away with making you sign away rights you thought were guaranteed in the constitution. Although there's a move afoot in Congress to change this, right now assume your arbitration agreement will be enforced.
If an employer presents you with an arbitration agreement or waiver of your right to trial pre-employment or during your employment, that’s the time to negotiate to make it go away. If the employer won’t negotiate, you can accept it or turn down the job. If they present it to you after you’ve accepted the job, most states will let them say, “sign it or be fired.”
I've seen employers argue that a page acknowledging receipt of the handbook (not having read it) is enough to bind the employee to an arbitration clause even though the handbook specifically said it wasn't a contract. Do they get away with this? Maybe.
Courts love arbitration agreements. It lightens their workload. Don’t expect help from the courts anytime soon. The remedy will have to be through Congress or your state legislature.
Here’s what you need to know about arbitration.
Arbitration defined: An arbitration where you submit your employment dispute to a neutral third party instead of the courts. Some arbitration is non-binding, that is, the parties can still go to court if they aren’t satisfied with the decision. But most arbitration is binding on the parties. That means you don’t even get to appeal an arbitrator’s decision under most circumstances.
Arbitrators: An arbitrator who handles employment arbitrations is usually a current or former employment lawyer, HR person, or other individual with experience in employment law matters. Arbitrators go through training on the process before they are approved to be on a panel. Depending on your arbitration agreement, you may have one or three arbitrators on your panel. You will usually have some input into the choice of your arbitrator. You will always be able to seek to remove them if they have a conflict of interest.
Rules: Most arbitration forums have detailed rules you need to follow throughout the process. Try to elect a forum, if you have a choice, that has employment rules (a great example is American Arbitration Association, which has separate rules for employment disputes), not just general commercial rules. Employment rules usually have some built-in due process protocols to protect individuals. Commercial rules are more geared toward businesses, and may assume the businesses are represented and experienced in arbitrations.
Discovery: Usually, arbitration relies on mutual exchange of documents, no depositions, and no full discovery that you’d get in courts. However, in employment situations, many arbitrators will allow limited discovery and depositions. It’s important to understand what will be allowed from the start of your process.
Costs: Who bears the costs is decided in the arbitration agreement or, if the agreement is silent, in the rules of the arbitration forum. If the rules require the employer and employee to split costs equally from the beginning, that’s a huge advantage for the employer. Remember, arbitrators have to be paid for their time. Most employees, especially unemployed ones, can’t afford to pay. The better way is to have the employer bear the costs from the beginning, then if the employee loses have them assessed with all or some of those costs at the end. But if your employer chose the forum and wrote the agreement, can you guess which way they’ll likely choose? If you have a lawyer representing you, they may be able to fight to get a fair apportionment of costs.
Time: The good news is, arbitration is usually quicker than a court case. The bad news is that there may be shortened deadlines for filing. Read your agreement and the rules very carefully.
Donna’s tips:
a. Arbitration has lots to offer as a form of alternate dispute resolution. It can save time and money, and the person making the decision is experienced in employment law. If there are due process protocols in place and a fair cost allocation, arbitration is nothing to fear.
b. Just because a proposed arbitrator handles primarily employer-side law, doesn’t mean they’ll be bad on your case. Most arbitrators take their position as neutrals very seriously. I’m an arbitrator who also happens to be a lawyer representing primarily employees, and I’ve ruled for management in some of my arbitrations. I've seen management-side lawyer/arbitrators rule for employees. Go for experience, a balanced resume, and if you can, look at some prior decisions before you make a decision on which arbitrators to strike from your panel.
c. Sometimes both sides hate the arbitrator choices the forum offers. Both sides can agree on an arbitrator they like outside the agreed forum.
d. Most objections you hear in court won’t apply to arbitration. Arbitrators can hear irrelevant evidence and all sorts of evidence and testimony that would be inadmissible in court. They tend to err on the side of allowing more, rather than less, information.
e. You don’t have to be represented in arbitration any more than you have to be represented in court. Still, if you can find a lawyer who handles employment arbitrations you’re better off than going it alone in most cases.
Even if you have time to think about them, most states will let employers get away with making you sign away rights you thought were guaranteed in the constitution. Although there's a move afoot in Congress to change this, right now assume your arbitration agreement will be enforced.
If an employer presents you with an arbitration agreement or waiver of your right to trial pre-employment or during your employment, that’s the time to negotiate to make it go away. If the employer won’t negotiate, you can accept it or turn down the job. If they present it to you after you’ve accepted the job, most states will let them say, “sign it or be fired.”
I've seen employers argue that a page acknowledging receipt of the handbook (not having read it) is enough to bind the employee to an arbitration clause even though the handbook specifically said it wasn't a contract. Do they get away with this? Maybe.
Courts love arbitration agreements. It lightens their workload. Don’t expect help from the courts anytime soon. The remedy will have to be through Congress or your state legislature.
Here’s what you need to know about arbitration.
Arbitration defined: An arbitration where you submit your employment dispute to a neutral third party instead of the courts. Some arbitration is non-binding, that is, the parties can still go to court if they aren’t satisfied with the decision. But most arbitration is binding on the parties. That means you don’t even get to appeal an arbitrator’s decision under most circumstances.
Arbitrators: An arbitrator who handles employment arbitrations is usually a current or former employment lawyer, HR person, or other individual with experience in employment law matters. Arbitrators go through training on the process before they are approved to be on a panel. Depending on your arbitration agreement, you may have one or three arbitrators on your panel. You will usually have some input into the choice of your arbitrator. You will always be able to seek to remove them if they have a conflict of interest.
Rules: Most arbitration forums have detailed rules you need to follow throughout the process. Try to elect a forum, if you have a choice, that has employment rules (a great example is American Arbitration Association, which has separate rules for employment disputes), not just general commercial rules. Employment rules usually have some built-in due process protocols to protect individuals. Commercial rules are more geared toward businesses, and may assume the businesses are represented and experienced in arbitrations.
Discovery: Usually, arbitration relies on mutual exchange of documents, no depositions, and no full discovery that you’d get in courts. However, in employment situations, many arbitrators will allow limited discovery and depositions. It’s important to understand what will be allowed from the start of your process.
Costs: Who bears the costs is decided in the arbitration agreement or, if the agreement is silent, in the rules of the arbitration forum. If the rules require the employer and employee to split costs equally from the beginning, that’s a huge advantage for the employer. Remember, arbitrators have to be paid for their time. Most employees, especially unemployed ones, can’t afford to pay. The better way is to have the employer bear the costs from the beginning, then if the employee loses have them assessed with all or some of those costs at the end. But if your employer chose the forum and wrote the agreement, can you guess which way they’ll likely choose? If you have a lawyer representing you, they may be able to fight to get a fair apportionment of costs.
Time: The good news is, arbitration is usually quicker than a court case. The bad news is that there may be shortened deadlines for filing. Read your agreement and the rules very carefully.
Donna’s tips:
a. Arbitration has lots to offer as a form of alternate dispute resolution. It can save time and money, and the person making the decision is experienced in employment law. If there are due process protocols in place and a fair cost allocation, arbitration is nothing to fear.
b. Just because a proposed arbitrator handles primarily employer-side law, doesn’t mean they’ll be bad on your case. Most arbitrators take their position as neutrals very seriously. I’m an arbitrator who also happens to be a lawyer representing primarily employees, and I’ve ruled for management in some of my arbitrations. I've seen management-side lawyer/arbitrators rule for employees. Go for experience, a balanced resume, and if you can, look at some prior decisions before you make a decision on which arbitrators to strike from your panel.
c. Sometimes both sides hate the arbitrator choices the forum offers. Both sides can agree on an arbitrator they like outside the agreed forum.
d. Most objections you hear in court won’t apply to arbitration. Arbitrators can hear irrelevant evidence and all sorts of evidence and testimony that would be inadmissible in court. They tend to err on the side of allowing more, rather than less, information.
e. You don’t have to be represented in arbitration any more than you have to be represented in court. Still, if you can find a lawyer who handles employment arbitrations you’re better off than going it alone in most cases.
Monday, December 6, 2010
Stupid HR Stuff: Can Anyone Tell Me the Point In Not Giving Copies of Contracts and Policies?
I’m sure this doesn’t apply to you. You’re one of the smart HR people. You have no dumba-- tendencies at all. But maybe you know someone who does this, so feel free to pass it on.
Noncompete, Confidentiality and Non-Solicitation Agreements
At least once a month, I have to request a copy of a former employee’s noncompete, confidentiality or non-solicitation agreement. Why? Because HR refused to give them a copy when they signed it.
My conversation with the client after they get the nastygram from the company lawyer usually goes like this:
Me: “Do you have a copy of the agreement?”
Client: “No.”
Me: “Why not?”
Client: “They told me it’s their policy not to give copies.”
Me: Pounds head on desk. “Then how are you supposed to know what you’re not allowed to do?”
Client: Shrugs.
Better yet, there’s this conversation:
Me: “Do you remember even signing an agreement?”
Client: “I don’t think I did. They handed me a bunch of papers my first day, but I think I’d know if I signed a noncompete.”
So I ask you, what the heck is the point of withholding the agreement? Better yet, I’m having a conversation right now with a company representative where, even after the nastygram, they’re refusing to give me a copy of the agreement. Apparently, I’m supposed to rely on their good word that: a. my client signed anything and b. they agreed not to work in their profession anywhere in the universe for a year. Hello? Anyone in there? It’s your burden to prove the contract exists, not mine.
If you can’t prove it to me, I assume what you’re saying is BS. Because about 1/3 of the time, employers claim that employees signed agreements that don’t exist just to scare and bully them into not working for a competitor. And don’t even think about forging one. I have a handwriting expert, and I’m not afraid to use him. (Yes, this really happens.)
The point of a noncompete agreement is to tell the employee what they are and aren’t allowed to do. If you don’t give them a copy, they have no idea. So you can’t blame them when they accidentally breach, can you? I’d like to hear you explain to a judge or jury how the employee was on notice of their obligations when you wouldn’t give them a copy. Can anyone say unclean hands?
Employee Handbook
Even better than this idiocy is the company that has the employee sign a paper saying they’ve been given the company handbook. When I ask where it is, the employee tells me they didn’t get a copy. Why? The company considers the handbook confidential. Say what?
The point of the handbook is to inform employees what is expected of them. What’s the point of refusing to give it to them? Are you that financially desperate that you can’t afford the $2.50 to copy it for them? Is it worth risking losing out on the defense you have if they fail to report sexual harassment when there’s a published sexual harassment policy? Do you think having them sign a paper saying they received it will make a difference when the jury hears that you made them sign something that wasn’t true? Why on earth wouldn’t you want employees to understand what conduct is prohibited? Why wouldn’t you want them to understand your absentee, discipline, and dress code policies?
Enlighten Me, Please
Maybe someone out there in HR can enlighten me. Because I see this refusal to make copies as pointless and stupid, maybe even dangerous to the employer and its ability to win a lawsuit down the road.
Some advice if you don’t want someone like me sitting across from a table taking your deposition: make sure your employees get copies of everything they sign, and that they understand what they’ve agreed to. Otherwise, how can they possibly do what you want?
Okay. Rant over. For now.
Noncompete, Confidentiality and Non-Solicitation Agreements
At least once a month, I have to request a copy of a former employee’s noncompete, confidentiality or non-solicitation agreement. Why? Because HR refused to give them a copy when they signed it.
My conversation with the client after they get the nastygram from the company lawyer usually goes like this:
Me: “Do you have a copy of the agreement?”
Client: “No.”
Me: “Why not?”
Client: “They told me it’s their policy not to give copies.”
Me: Pounds head on desk. “Then how are you supposed to know what you’re not allowed to do?”
Client: Shrugs.
Better yet, there’s this conversation:
Me: “Do you remember even signing an agreement?”
Client: “I don’t think I did. They handed me a bunch of papers my first day, but I think I’d know if I signed a noncompete.”
So I ask you, what the heck is the point of withholding the agreement? Better yet, I’m having a conversation right now with a company representative where, even after the nastygram, they’re refusing to give me a copy of the agreement. Apparently, I’m supposed to rely on their good word that: a. my client signed anything and b. they agreed not to work in their profession anywhere in the universe for a year. Hello? Anyone in there? It’s your burden to prove the contract exists, not mine.
If you can’t prove it to me, I assume what you’re saying is BS. Because about 1/3 of the time, employers claim that employees signed agreements that don’t exist just to scare and bully them into not working for a competitor. And don’t even think about forging one. I have a handwriting expert, and I’m not afraid to use him. (Yes, this really happens.)
The point of a noncompete agreement is to tell the employee what they are and aren’t allowed to do. If you don’t give them a copy, they have no idea. So you can’t blame them when they accidentally breach, can you? I’d like to hear you explain to a judge or jury how the employee was on notice of their obligations when you wouldn’t give them a copy. Can anyone say unclean hands?
Employee Handbook
Even better than this idiocy is the company that has the employee sign a paper saying they’ve been given the company handbook. When I ask where it is, the employee tells me they didn’t get a copy. Why? The company considers the handbook confidential. Say what?
The point of the handbook is to inform employees what is expected of them. What’s the point of refusing to give it to them? Are you that financially desperate that you can’t afford the $2.50 to copy it for them? Is it worth risking losing out on the defense you have if they fail to report sexual harassment when there’s a published sexual harassment policy? Do you think having them sign a paper saying they received it will make a difference when the jury hears that you made them sign something that wasn’t true? Why on earth wouldn’t you want employees to understand what conduct is prohibited? Why wouldn’t you want them to understand your absentee, discipline, and dress code policies?
Enlighten Me, Please
Maybe someone out there in HR can enlighten me. Because I see this refusal to make copies as pointless and stupid, maybe even dangerous to the employer and its ability to win a lawsuit down the road.
Some advice if you don’t want someone like me sitting across from a table taking your deposition: make sure your employees get copies of everything they sign, and that they understand what they’ve agreed to. Otherwise, how can they possibly do what you want?
Okay. Rant over. For now.
Wednesday, October 27, 2010
Non-Compete Agreements - Top 5 Ways To Get Out of Yours
Your employer will tell you that you are bound by your non-compete agreement when you leave. The reality is that most employees don’t have the will or the resources to fight them. Many employees think that, just because an employer forced them to sign the agreement or be fired, that they are not bound by a non-compete agreement. That’s just not true. Continued employment is valid consideration for a non-compete agreement in some states, and almost all will enforce some non-compete provisions. That doesn’t mean you can’t get out of yours if you’re willing to fight.
What usually happens is the employer sends a letter to the employee and the new employer, threatens to sue both, and the employee gets fired from their new job, even where they told the new employer about the non-compete. That’s because, unless you have a contract with the new employer spelling out that you can only be fired for cause, and that the non-compete is known to the employer and is not cause, most states are at-will states. That means any employer can fire any employee for any reason or no reason at all.
Does it stink that companies can force employees to sign non-competes and use them as essentially indentured servitude? Yes. I see cases all the time of bully bosses using non-competes to force employees to stay under terrible conditions. Or worse, cases where an employee quit their great job based on promises, then were presented with a non-compete after they start the new job. They stay a month or so, during which time the new employer uploads all their valuable contacts into the database. When the company gets what they need, they fire the poor employee, then say they can't work in their field for a year or two. Will courts enforce such a despicable scheme? Sometimes.
The laws need to change, so call up your state legislator and complain. Better yet, write them. In the meantime, can your employer enforce your non-compete? Maybe. Can they outlast you financially if they sue you? Almost certainly. Do you have rights? Absolutely.
Smart employees consult an attorney before signing a non-compete to be advised of their rights. Even if you signed without getting advice, you still may have some legal arguments to defeat your non-compete.
1. Employer breaches the contract: If your employer put the non-compete provision in an employment contract spelling out compensation, insurance and other conditions of employment, it is important to have an attorney go through the contract line-by-line. If the employer breached the agreement by failing to pay all compensation due, failing to fulfill the insurance requirements, or failing to meet some other obligation, the employee may be relieved of all obligations under the contract.
2. No legitimate interest to enforce: Many employers attempt to overreach their legitimate business interests, and this is one of the most common mistakes. For instance, an employer has no legitimate interest in enforcing a non-compete against low-level employees such as receptionists and clerical employees. An employer who manufactures computer software for accountants has no legitimate interest in preventing an employee from working on software for doctors. An employer who is phasing out of an area has no legitimate interest in preventing an employee from working in that area. An employer who abandons a particular customer, area of business, or product has no legitimate interest in the area it abandoned. The following are likely to be considered legitimate business interests in most states that allow non-compete agreements:
a. Trade secrets;
b. Valuable confidential business or professional information;
c. Substantial relationships with specific prospective or existing customers, patients, or clients;
d. Goodwill associated with an ongoing business or professional practice, by way of a trademark, geographic location or marketing/trade area;
e. Extraordinary or specialized training.
3. Agreement is for too long a time period: Your state non-compete statutes will determine what time period the courts will consider reasonable. For instance, a period of less than 6 months may be presumed valid, and over 2 years might be presumed invalid. In between, the employer will have to prove that the time period is reasonable. However, courts may assume that agreements up to your state’s maximum number of years are reasonable. Anything over your state’s set maximum is going to be a hurdle for the employer to overcome.
4. The so-called confidential information is something readily available to the public: Many companies get their sales leads from public sources. Phone books, professional directories, the internet, notification services, are all sources that are available to anyone in the industry. So an employer who claims they are protecting their valuable secret client sources is going to have to show that the information was not available to everyone else in the industry. Existing customer lists or unique sources may well be protected, but chamber of commerce directories are probably not.
5. Public health or safety would not be served: This primarily applies to doctors, nurses, and people in specialized scientific and health areas. If there is a shortage of people in a particular specialty, or in a particular geographic area, then the employer probably cannot enforce a non-compete even if all the other requirements are met. If you are one of 10 brain surgeons in the country who can perform a particular procedure, your employer probably can’t prevent you from saving people’s lives.
In general, I tell people to assume their non-compete agreements are enforceable, and not to sign them unless they can live with the restrictions. But an employee with the time, will, and resources to fight can frequently limit or eliminate their non-compete provisions.
And an employer who tries to enforce a non-compete and fails may end up paying the attorney’s fees and costs of the prevailing employee, and will sometimes be paying money damages to the employee for tortious interference with an employment relationship if they cost the employee a job.
If you’re leaving a job and you have a non-compete, the best thing to do is get advice from an employment attorney before you leave. You’ll want to look at the agreement to see which state’s law applies and get a lawyer in that state to take a look. If no state is specified, then it’s probably the state where you work for the employer. A written agreement with the new employer to defend you and to pay you even if you can’t perform particular services if a court issues an injunction will protect you.
If you get sued to enforce a non-compete, you MUST contact an employment attorney in the state where you’re sued immediately to defend yourself or you will lose your new job, you will have a money judgment against you, and you will have no ability to raise any defenses to the non-compete agreement.
What usually happens is the employer sends a letter to the employee and the new employer, threatens to sue both, and the employee gets fired from their new job, even where they told the new employer about the non-compete. That’s because, unless you have a contract with the new employer spelling out that you can only be fired for cause, and that the non-compete is known to the employer and is not cause, most states are at-will states. That means any employer can fire any employee for any reason or no reason at all.
Does it stink that companies can force employees to sign non-competes and use them as essentially indentured servitude? Yes. I see cases all the time of bully bosses using non-competes to force employees to stay under terrible conditions. Or worse, cases where an employee quit their great job based on promises, then were presented with a non-compete after they start the new job. They stay a month or so, during which time the new employer uploads all their valuable contacts into the database. When the company gets what they need, they fire the poor employee, then say they can't work in their field for a year or two. Will courts enforce such a despicable scheme? Sometimes.
The laws need to change, so call up your state legislator and complain. Better yet, write them. In the meantime, can your employer enforce your non-compete? Maybe. Can they outlast you financially if they sue you? Almost certainly. Do you have rights? Absolutely.
Smart employees consult an attorney before signing a non-compete to be advised of their rights. Even if you signed without getting advice, you still may have some legal arguments to defeat your non-compete.
1. Employer breaches the contract: If your employer put the non-compete provision in an employment contract spelling out compensation, insurance and other conditions of employment, it is important to have an attorney go through the contract line-by-line. If the employer breached the agreement by failing to pay all compensation due, failing to fulfill the insurance requirements, or failing to meet some other obligation, the employee may be relieved of all obligations under the contract.
2. No legitimate interest to enforce: Many employers attempt to overreach their legitimate business interests, and this is one of the most common mistakes. For instance, an employer has no legitimate interest in enforcing a non-compete against low-level employees such as receptionists and clerical employees. An employer who manufactures computer software for accountants has no legitimate interest in preventing an employee from working on software for doctors. An employer who is phasing out of an area has no legitimate interest in preventing an employee from working in that area. An employer who abandons a particular customer, area of business, or product has no legitimate interest in the area it abandoned. The following are likely to be considered legitimate business interests in most states that allow non-compete agreements:
a. Trade secrets;
b. Valuable confidential business or professional information;
c. Substantial relationships with specific prospective or existing customers, patients, or clients;
d. Goodwill associated with an ongoing business or professional practice, by way of a trademark, geographic location or marketing/trade area;
e. Extraordinary or specialized training.
3. Agreement is for too long a time period: Your state non-compete statutes will determine what time period the courts will consider reasonable. For instance, a period of less than 6 months may be presumed valid, and over 2 years might be presumed invalid. In between, the employer will have to prove that the time period is reasonable. However, courts may assume that agreements up to your state’s maximum number of years are reasonable. Anything over your state’s set maximum is going to be a hurdle for the employer to overcome.
4. The so-called confidential information is something readily available to the public: Many companies get their sales leads from public sources. Phone books, professional directories, the internet, notification services, are all sources that are available to anyone in the industry. So an employer who claims they are protecting their valuable secret client sources is going to have to show that the information was not available to everyone else in the industry. Existing customer lists or unique sources may well be protected, but chamber of commerce directories are probably not.
5. Public health or safety would not be served: This primarily applies to doctors, nurses, and people in specialized scientific and health areas. If there is a shortage of people in a particular specialty, or in a particular geographic area, then the employer probably cannot enforce a non-compete even if all the other requirements are met. If you are one of 10 brain surgeons in the country who can perform a particular procedure, your employer probably can’t prevent you from saving people’s lives.
In general, I tell people to assume their non-compete agreements are enforceable, and not to sign them unless they can live with the restrictions. But an employee with the time, will, and resources to fight can frequently limit or eliminate their non-compete provisions.
And an employer who tries to enforce a non-compete and fails may end up paying the attorney’s fees and costs of the prevailing employee, and will sometimes be paying money damages to the employee for tortious interference with an employment relationship if they cost the employee a job.
If you’re leaving a job and you have a non-compete, the best thing to do is get advice from an employment attorney before you leave. You’ll want to look at the agreement to see which state’s law applies and get a lawyer in that state to take a look. If no state is specified, then it’s probably the state where you work for the employer. A written agreement with the new employer to defend you and to pay you even if you can’t perform particular services if a court issues an injunction will protect you.
If you get sued to enforce a non-compete, you MUST contact an employment attorney in the state where you’re sued immediately to defend yourself or you will lose your new job, you will have a money judgment against you, and you will have no ability to raise any defenses to the non-compete agreement.
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