Should I Tell My Boss About My Mental Illness? Why You Should Not (And Three Times You Should)

A reader at AOL Jobs recently asked:

I have 7 years tenure with my company with great reviews. My last 6 month review I had met expectations in every area. I am going through a traumatic personal situation. A new manager was hired in October, and she's the one who gave my last review. In January, I disclosed to her I had PTSD. After that she met with me a month later accused me of not working. Took me to regional manager. They said I was making excuses and were disappointed. She recently told me "maybe you can't do this job anymore". She then lied on coaching logs saying I could not do my work. I went out on leave for PTSD. The last day she had me meet her to give me my year review, which stated I was below expectations in every area. When I came back from leave I was put on a performance improvement plan. She continues to lie about my performance. Is there any way to prove discrimination? They put me on an improvement plan for not meeting certain goals, but my counterparts are having the same problems meeting goals. Other counterparts are having even worse issues and are not put on a performance improvement plan. Please advise.

Unfortunately, the stigma associated with any mental illness means most people are afraid to tell their coworkers or boss. When they do, it's all too common to be subjected to sudden criticisms that you never faced before. In this situation, the fact that you had all good reviews before you disclosed your mental illness and were only written up after you disclosed it could be strong evidence of disability discrimination. If you can prove that your performance didn't change, or that your coworkers are failing to meet the same goals as you and aren't being written up, then you should talk to an employment lawyer in your state or EEOC about bringing a disability discrimination claim against your employer.

 In honor of Mental Illness Awareness Week, my latest piece in AOL Jobs covers why you shouldn't disclose a mental illness or disorder to your employer, along with three times you should disclose it. Read more here.

Shutdown Doesn't Stop Employment Law Filing Deadlines

Thanks to the government shutdown, EEOC's website is down. NLRB's website is also down. You might assume the fact the government is shut down means your deadline for filing claims against your employer is extended. You'd be wrong (maybe). If you have a deadline coming up soon for filing a charge of discrimination with EEOC or a charge against employer with NLRB, you may still have to (somehow) get your filing done in time.

My latest piece in AOL Jobs tells you what to do if you have a pressing deadline to file with EEOC or NLRB.

Your Employer Wants To Erase Your Personal Cell Phone And Computer

The concept of BYOD is all the rage in management-side circles right now. BYOD stands for Bring Your Own Device. Basically, the idea is that companies let employees do work for them on their own cell phones, laptops, tablets and other devices. Lots of dark-side, er, management-side lawyers are blogging about employer risks in having employees use their personal devices at work, and I don't necessarily disagree with them. Some of my management-side colleagues even offer sensible advice on the issue, and even offer advice on how to reassure employees about their privacy concerns. I'm all for employers getting advice on how to get things right.

Then I saw this advice in a recent blog post:

Address what happens when the employee stops working for your company: As noted above, employers have a duty to safeguard sensitive company data. Therefore, when an employee terminates his or her relationship with the employer, the employer must ensure that all of its data is permanently erased from the employee’s personal devices. Yet, it is often impossible to separate relevant company data from personal employee information when “wiping” a device. Therefore, employers should require that their employees acknowledge and agree that all of the data on their devices will be erased when the employee stops working for the company.

Come again? Let me get this straight. Your boss is too cheap to buy you a laptop and a company cell phone. Instead, he "lets" you use your own device. You need them for work, so don't hesitate to use your own laptop, cell phone and tablet to get the job done.

Of course, you also used the cell phone to take pictures of your son's wedding, your daughter's school play, and your last vacation. You uploaded those photos to your laptop too. You use your laptop to email your friends from high school, to send out party invitations, and to remind your spouse to pick up the dry cleaning. Your music library that took you three straight days to copy from your old CDs is in the cell phone and laptop. Plus, your manuscript for your first novel in progress is stored in the laptop.

Now that you're leaving the company, they want you to let them erase all your photos, personal info, writing, everything just because you were dumb enough to volunteer to use your personal devices so they didn't have to buy you separate company devices? Have they lost their fricking minds?

Even worse, some employers want you to let them install a program that will allow them to remotely wipe your devices and track your usage.  The technology does exist for companies to remotely wipe only the business data and not your personal data:

Devices get lost or employees leave a company, and suddenly all that corporate information on a smartphone becomes a security threat. In the past, a company could use “remote wipe” technology to delete all data, but with a personal device, this method also trashed family photos, personal contacts, apps, music and anything else that’s stored. Fortunately, remote deletion capability is much more sophisticated these days, and a company can remove just enterprise-related data from a device and leave all the other content intact.

If employees ever do rise up against their corporate masters, it's this kind of overbearing nonsense that will have caused it.

What's an employee to do?

Say no: If your company wants you to use your device for company purposes, say no. Keep your business and personal stuff separate. If they demand you use it, then get something in writing assuring you that they will not demand you erase your device when you leave. If they want to install a remote wiping program, get something in writing stating that none of your personal data will be erased, and that the company will be liable for damages if they erase your personal data.

Say hell no: If they spring this demand on you when you leave, tell them to pound sand. There are less intrusive ways to assure you've erased business data. For instance, the company could hire a computer tech to delete only the company data while you are present to assure that nothing personal is being copied or erased.

Prosecute: If your employer accesses your personal data without your permission, press criminal charges. It's a violation of the Computer Fraud and Abuse Act and the Stored Communications Act to access your personal data without your permission. They'd prosecute you if you accessed their info. Turnabout is fair.

In general, it's best to use the company devices only for work. Use your personal devices for personal stuff. Don't trust your employer to be reasonable when you leave. Big Employer has lost it's fricking mind.

10 New (And Legal) Ways Your Employer Is Spying On You

Just when I think I've heard every extreme story about employer spying, I hear a new one that curls my hair. For instance, a company recently turned in a former employee to the local police for making "suspicious" Google searches on the company computer. One employer installed a tracking device in the car of an employee they thought might be moonlighting with a second job. The National Workrights Institute says that two out of three U.S. employers are using some sort of electronic monitoring of employees. Why? Because it works. One study found that monitoring decreased theft by 22% and increased revenues by 7%. Employers don't seem to care that monitoring also causes increased employee stress and dissatisfaction with their jobs.

Think you have the right to privacy at work? Think again. My article at AOL Jobs discusses10 perfectly legal and new ways your employer may be spying on you.

Court Says Lactation Is Related to Pregnancy, Refrains From Saying, "Duh"

I wrote about a really stupid case out of Texas where a federal court said that "lactation is not pregnancy, childbirth, or a related medical condition," and thus decided that "firing someone because of lactation or breast-pumping is not sex discrimination."  I was irked, to say the least. Lactation not related to pregnancy and childbirth? Really?

Well, the 5th Circuit Court of Appeals which, to its credit, refrained from saying, "Well, duh," has unanimously ruled that lactation is, indeed, related to pregnancy and is therefore covered by Title VII. EEOC reports this about the decision: "The Fifth Circuit noted the biological fact that lactation is a physiological condition distinct to women who have undergone a pregnancy.  Accordingly, under Title VII and the Pregnancy Discrimination Act, firing a woman because she is lactating or expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason. The case was remanded back to the lower court for a trial on the merits."

Personally,  I think the 5th Circuit should be applauded, not only for its common sense, but for the fact that it did not openly mock the lower court's ruling. I wouldn't have had that much self-control.

I should also point out that almost all employers are required to provide nursing mothers with break time to pump breast milk, along with a private space that isn't the restroom to do so. The Fair Labor Standards Act requires this, so employers who fire moms for lactating may also run afoul of this law, even if they aren't large enough to be covered by Title VII.

I rarely get to say this, so: Hooray for common sense in the courts!

How To Tell If Your Employer Is Spying On You

You may know that your employer can legally spy on you at work (and outside of work) in several ways. But how do you actually know if your employer is snooping? Here are some signs that your employer may be spying on you:

Read more at Jobs Week on AOL Jobs.

Guest Post: Will Your Employer Miss The October 1 Deadline For Obamacare Notice?

By Associate Attorney who now chooses to be anonymous, Donna M. Ballman, P.A., Employee Advocacy Attorneys

October 1, 2013 is the first day employees can officially sign up for the Affordable Care Act, a/k/a “Obamacare.” Although you can sign up for Obamacare starting on this date, no one will actually get coverage until January 1, 2014. The gap between enrollment and enactment provides the government and insurance companies time to ease into the new program and make any necessary adjustments for a smoother transition. Open enrollment in the program does not end until late March 2014.

Your employer is supposed provide written notice to all existing employees and any new employees hired, beginning on October 1, 2013. A notice is timely issued if provided within 14 days of an employee’s start date.Your employer is probably going to miss this deadline.

Many small businesses reported that they were unaware of the notice requirements and feared potential risk to penalties. As a result, the Department of Labor (DOL) posted a notice on its website stating that employers cannot be fined for failing to provide the notice. Unfortunately, although the notice is a “requirement,” DOL stated, “If your company is covered by the Fair Labor Standards Act, it should provide a written notice to its employees about the Health Insurance Marketplace by October 1, 2013, but there is no fine or penalty under the law for failing to provide the notice.” [Donna's comment: on the other hand, if employees miss any deadline, just see what happens to them. Fair? Ha!]

The main focus of Obamacare is the establishment of the Health Insurance Martketplace (“Marketplace”), which is set to start on January 1, 2014. The Marketplace provides “one-stop shopping” for consumers to find and compare private health insurance options. Section 1512 of the law requires employers to provide employees notice of the coverage options available to them through the Marketplace. Your employer must provide the notice to each employee regardless of their health plan enrollment status or whether or not the employee works part-time or full-time. However, employers are not required to provide notice to dependents or those who may became eligible for coverage but who are not employees.

The notice to employees must: (1) inform you of the existence of the Marketplace, description of services provided by the Marketplace, and ways to contact the Marketplace for assistance; (2) inform you that if the employer plan’s share of the total allowed costs of benefits provided under the plan is less than 60% of such costs, you may be eligible for a premium assistance tax credit and cost sharing reduction; and (3) if you purchase a qualified health plan through the Marketplace, you may lose any employer contribution to any health benefits plan offered by the employer, and all or a portion of such contribution may be excludable from income for Federal income tax purposes.

DOL provides model notices on their website, which is worth looking at if you are considering exploring the Marketplace options, especially since your employer may not send you the notice. The website provides two model notices, one for employers who do not offer a health plan and another for those who do offer a health plan to some or all employees. Employers are not required to use the model notices, as long as the written notice they do provide meets the requirements discussed above.

It is worth looking into the Marketplace even if you are already covered, because you may find more affordable or more comprehensive coverage there.