Answers to Questions On Veterans' Rights, Right To Copy of Handbook

This week I'm answering questions posted on VOW to Hire Heroes Act Fixes Stupid Legal Loophole for Military and Stupid HR Stuff: Can Anyone Tell Me the Point In Not Giving Copies of Contracts and Policies?

Targeting Veterans For Drug Testing

What if an employeer gives an disabled veteran more than one urine test a month and then marks the last form as possible suspesion/cause. Does a disabled veteran have any recourse for legal action? this employer also has me under a arbutrary agreement for employment.

David

Hi David. If you're being targeted for more tests than coworkers because you're a disabled veteran, that may well violate your USERRA rights, as well as the ADA. If, however, you are being tested under the company's random drug testing policy the same as any other employee, then I don't know of any law that treats veterans differently than other employees.

Drug testing laws vary by state, and drug tests are extremely unreliable. The National Workplace Institute says this:

Commonly used drug tests yield false positive results at least 10 percent, and possibly as much as 30 percent, of the time.

Unreliability also stems from the tendency of drug screens to confuse similar chemical compounds. For example, codeine and Vicks Formula 44-M have been known to produce positive results for heroin, Advil for marijuana, and Nyquil for amphetamines. Other substances known to cause false positives include Nuprin, Contac, Sudafed, certain herbal teas and poppy seeds.

Although more accurate tests are available, they are expensive and infrequently used. And even the more accurate tests can yield inaccurate results due to laboratory error. In October, 1990, the National Institute on Drug Abuse launched an investigation into the widely used federal drug testing procedure after learning that a government- certified laboratory incorrectly reported workers had tested positive for illegal methamphetamine when in fact they had been using over-the-counter cold or asthma medicines.

Some state laws and union contracts allow random testing  no more than once a month. Otherwise, it must be for good cause shown. Many times, an employee who has a workplace accident must submit to a drug test. Some states prohibit or limit drug testing in the workplace. A recent summary of state drug testing laws is here.

Employer Won't Give Copy of Handbook

What can you do if your former employer refuses to or cannot provide you with a copy of the employee handbook you signed. I ask this because I was fired without a written warning and remember that it was specifically stated in the handbook that a written warning is it be given before termination. 

Jessica

Hi Jessica. This is one of the stupid things that companies do all the time, and I don't get it. Why on earth have a handbook you want employees to comply with, and then not give them a copy? How can they comply if you won't let them see it? Better yet, may employers make employees sign saying they've received the handbook, but won't give them the handbook. If that's your situation, I think it's outright fraud on the part of the employer.

Some states require that employers give you a copy of anything you signed if you request it. If you're in one of those lucky states and you signed a paper from the handbook itself, you may be legally entitled to a copy.

Otherwise, there's no law that I know of requiring employers to give you a copy of their own handbook. However, it will be tough for them to utilize key defenses to some employment laws if they don't. For instance, if you don't report sexual harassment under a known employer policy, it's a defense to a sexual harassment claim. Where the employer won't give you a copy of the handbook, you could argue that the policy was not a known policy.

I think any employer that won't give employees a copy of the employee handbook is idiotic.

As always, talk to an employment lawyer in your state if you think your employer broke the law.

Today is the last day to nominate blogs for the ABA Blawg 100. If you enjoy reading this blog, I'd appreciate your nomination, which you can do in a minute or less here. Thanks for your support.

Answers to Your Nepotism Questions

This week I'm answering some questions that were posted on my old post, Nepotism Is Not Illegal.

My husband was passed over for a job he was qualified for because of nepotism. This in law enforcement in Utah, and he has been passed over twice based on the fact that my brother already works for the department. So now is there anything he can do? Or does he just have to roll over and take it?

Ilse

Hi Ilse. It sounds like your husband is being subjected to an employer's own anti-nepotism policy. While nepotism is generally not illegal, some employers, especially government employers, have rules or even laws prohibiting hiring of relatives. That's because sometimes relatives take advantage and hire their no-account nephew, their drop-out daughter, or their burn-out uncle. Other employers have more specific anti-nepotism policies saying employees cannot hire or supervise their relatives.

Utah's Nepotism Act apparently makes it unlawful to appoint, supervise or make salary or performance recommendations for a relative. That means your brother can't make the decision to hire your husband, but it doesn't sound like there's a complete ban on hiring relatives. Maybe it's in the union contract or somewhere else. If the ban is simply that your brother can't supervise or hire your husband, then I'd suggest having your husband reapply and hand them a copy of the law showing that it doesn't prohibit the department from hiring him.

Here are some more state anti-nepotism laws.

What about nepotism in a nonprofit nursing home where 99% or more of their income is from Medicare/Medicaid?

Steven

Hi Steven. I haven't found any prohibition against a privately-owned nursing home hiring relatives of employees or owners, whether or not they have income from Medicare or Medicaid. If your employer wants to fire you so they can hire their son, daughter or wife, it's probably legal for them to do so.

I have a question regarding refusal to hire because of relation. I worked with my husband (when we were still dating) at his current employer. I submitted a resume because they stated I was not applying within the department so I was eligible. And I left on good terms. But now that my resume has been submitted, they say no because of the nepotism policy they have in effect. Can they deny my employment for this reason? AND if so, would they have been able to fire one of us after we got married while I was already employed there?

Ed

Hi Ed. Yes, an employer can deny you employment if it violates their anti-nepotism policy.  Some states, like Florida, have laws saying that employers can't discriminate based on marital status. However, I don't know of any law that prohibits an anti-nepotism policy. You can be fired for marrying a coworker, but can't be fired just because you got married in general. For employees being fired because they married a coworker, I usually look at that situation under sex discrimination laws. If only one of the two married partners is being terminated, it might be sex discrimination. Most employers tell the couple that they must pick which one is to leave, or both will be fired.

Can I Tape My Employer If I Have Poor Memory?

I got this question on an old but popular post, I Secretly Taped My Boss and Now I Want to Sue:

I have been telling my supervisor for months that I have a memory problem. He knew that I was working with a neurologist. I recorded a meeting with him where I anticipated finding out what my new job duties would be. I live in MD and was terminated for making the recording, even through I told them why I did it.

Thisguyneedshelp

Hi Thisguyneedshelp. As I stated in my prior post, Maryland is an all-party consent state, meaning that your employer must consent before you are allowed to record them. In your situation, I think withholding consent might violate the Americans With Disabilities Act (ADA).

If your memory problem is caused by a disability, such as Alzheimer's, Parkinson's, or another medical or mental condition that substantially limits a daily life activity, then you are allowed to request a reasonable accommodation for your condition. If you told your employer you need to tape conversations so you can remember them, that's a request for a reasonable accommodation under the ADA.

If you've been taping conversations with their knowledge, then all of a sudden they fired you for doing so, then firing you for doing so may violate the ADA.

If, however, you secretly taped the conversation and they found out about it, you may be out of luck.

Here's what I suggest for people who want to tape conversations in an all-party consent state. Put the tape recorder on the desk in front of the person with whom you are speaking. Turn it on and say, "I'd like to tape this conversation. Is that okay?" If they say yes, then tape away. If they say no, turn it off. You could add, for future employers, "I'd like to tape this conversation to accommodate my memory issues. Is that okay?"

If you were fired for taping without the employer's consent, then Maryland, like every state except Montana, is an at-will state. That means you can be fired for any reason or no reason at all (with exceptions). You can't be fired because of a disability, race, age, sex, religion, national origin, or other protected status. You can't be fired because you blew the whistle on illegal activity of the company, made a worker's comp claim, or took FMLA leave. Otherwise, they can fire you for a bad reason or no reason.

I'd suggest talking to an employment lawyer in your state about your rights.

Can I Sue a Lying Coworker?

I'm answering areader questions today.

Hello Donna,

I was fired last year based on lies a co-worker made to our employer. My former employer is now enforcing a non compete I was forced to sign prior to employment that doesn't allow me to work in my professional field anywhere the company does business, I have had numerous job offers resented due to the non compete. Plus they have stated the process to sue me in federal court without any proof what so ever as there is nothing to prove. I won a transfer to my home state, and am awaiting a court date to dealing with these false charges.

What can I do about the co-worker that lied and caused my termination? Slander suit or civil? I am still unemployed, broke and now facing foreclosure along with mounting stress of all this I have gain 20 pounds, don't sleep very well. Your thoughts on counter suing employer or co-worker?

Thanks Unemployable 

Hi Unemployable. I'm sorry this is happening to you. I get lots of questions about filing defamation (slander/libel) claims against coworkers and supervisors. In general, it's usually not worth the hassle. First of all, your coworker probably isn't wealthy, and even if they are, they may not be collectable. You might get a judgment for a gazillion dollars against them, but so what? If you can't collect, what's the point?

Now, let's talk a bit about slander and libel. You would need to prove a false statement of fact, not opinion. Examples of false statements of fact: "Joe stole $100 from the cash register;" "Jane is a child molester;" "Artie was arrested for embezzlement." Examples of opinion that probably will never be defamation: "Joe didn't fit in;" "We decided to go a different way;" "Artie's performance wasn't up to our high standards." In between, there are lots of shades of gray. Here in Florida, I find the courts absolutely hate defamation cases by employees. You'll want to check with an employment lawyer in your state about your rights if you decide to pursue something against your coworker.

Next, you'll have to prove the statement was "published" to a third party. All this means is it was said to someone besides you. Here's where it gets tricky. A corporation is a "person" for most legal purposes. If a corporation publishes a statement to itself, that's probably not defamation. If a coworker reports something to her boss, HR puts something in your file, or your supervisor announces your discipline to the corporate Board, that's probably not a publication.

You'll also encounter the sticky issue of "privilege." Some statements are going to be covered by an "absolute privilege," meaning that they'll never be defamatory. These can include statements made in a legal proceeding like a deposition, court testimony or an unemployment hearing. Statements made to police are likely privileged. Some privileged statements are under a "qualified privilege," meaning you can overcome the privilege if you show that the statements were made with malice or were published beyond the circle of people who needed to know. Examples of qualified privilege would be statements made to an employer in a sexual harassment investigation and statements made to a government agency as part of an investigation. In some states, job references are somewhat privileged. However, if an employer deliberately gives out false facts about you, that's probably still defamation.

Whether your company will be liable for your coworker's statements will depend on whether those statements were  made within the scope of that person's employment. For instance, if an HR person gave false information to a job reference based on what is in your file, the company may be liable. It's difficult to get courts to hold a company liable for an intentional wrongdoing of one of its employees. Mostly, they'll say it was done for some individual purpose and not a company purpose, so was outside the scope of employment. If the company president or someone who can bind the company by their actions defames you, the company may also be liable.

Since the statements by your coworker cost you a job, you'll certainly be able to prove damages. If you think you have a defamation case, definitely talk to an employment lawyer in your state.

More Answers To Your Noncompete Questions

I'm still getting lots of questions on noncompete agreements. Here are some of your questions, and my answers:

Bounced Checks, Unpaid Overtime, and Selling Company

Hi Donna
I work in jackson Wyoming in decorative concrete work I signed a non compete with my employer and he has been dropping the ball by bouncing payroll checks not only to me but to vendors and so on. I just found out he is trying to sell the company and a lot of his clients are asking me to do their future jobs what do i do or can i do to be out of this mess. Oh and he has decided to not pay overtime and bank our hours even though we refused because we never collect them all.

DJ

Hi DJ. I'm not sure about Wyoming, but in many states failing to pay all wages due, which would include those bounced checks and overtime, would be a defense to enforcement of your noncompete agreement. You should talk to an employment lawyer in your state about collecting what's owed to you, and about how to defend against your noncompete. To collect those unpaid wages, you could also contact the Department of Labor for help. Just remember that they are a very busy government agency.

As to the company being sold, it will depend on your state law and what your noncompete agreement says. If the agreement says the company can assign the agreement, or that it applies to their successors, then you may be bound even if the company is sold. Again, this will depend on your state's law. In Florida, companies didn't used to be able to assign noncompetes. Now they can.

The other issue about a sold company will be whether they continue in your line of work. If a company abandons a line of business, a geographic area, or specific customers, they have no legitimate interest to protect in keeping you from working in those lines, areas or for those customers.

Company Moved

Question: I signed a non compete in Kansas, and my company moved to Missouri. Is this enforceable now?

Private Investigator

Hi Private Investigator. As I mentioned to DJ above, it will depend on the facts. If your contract says that you can't compete in Kansas and the company no longer does business in Kansas, they'll have a hard time showing they have a legitimate interest to protect. However, if they do business nationwide and continue servicing Kansas customers, then the agreement may still be enforceable. Depending on your state law, you may have a defense if you're fired without cause or laid off due to the move. Here in Florida, that would not be a defense.

Sign Or Be Fired, Then Hours Cut

Hey, I live in ohio and im currenlty under a non compete for demolition and asbestos abatement. I basically forced to sign when he said "sign or I cant employ u any longer" since then my hours have dropped off the charts only receiving 16-24 hours a week making 13 $/hr, clearerly not enought to provide for my 16 month old son! I feel like I could some how get out of the non comepte due to the lack of hours provided but I dont know.

Chris

 Hi Chris. Some states don't allow employers to coerce you into signing by saying, "Sign or be fired." They require additional consideration, such as pay increase or promotion. However, states like Florida say that continued employment is sufficient consideration for a noncompete. Pretty crappy, huh?

In your case, however, it sounds like your employer knew they were going to cut your hours when they demanded you sign. That sounds like fraud in the inducement to me. It might be a defense to enforcement of your noncompete agreement. You should talk to an employment lawyer in your state about your rights.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Answers To Your Questions On Noncompete Agreements

I was just going through some of my old blog posts when, what to my wondering eyes should appear, but new(ish) questions on some posts from long, long ago. The post with the most questions is  Non-Compete Agreements - Top 5 Ways To Get Out of Yours, which I wrote in 2010. Since I'm a fan of all things undead, I thought I'd pick a couple of neglected questions and bring them back to life by answering them here.

Please remember that asking me questions in my blog doesn't create an attorney-client relationship, nor are my answers legal advice. I'm glad to discuss legal issues generally and offer my thoughts. Asking here is for public consumption, as are my answers.

Fired 10 Days After Signing Noncompete

Here's a question from Jeremy M:

My state (Kansas) has a law saying employment can be enough consideration at the time of hire, but I can not find anything relating to a condition of continued-employment. After a year of employment with-out a non-compete at a local sales firm I was threatened with my job unless I signed a non-compete. It was during the holidays last year and I was the sole-provider for my family. After a couple of weeks of almost daily mentions I finally signed under pressure, only to be terminated 10 days later. It truly felt like it was a setup.

Do you know where I can research more regarding the consideration clauses of my state? I don't feel I have the resources for a employment lawyer, and am considering self-representation. Thank you for any insight!

 I'm so sorry to hear about this Jeremy. You'd be surprised how common it is for employers to demand an employee sign a noncompete where the only consideration is continued employment, then fire the employee shortly after firing. That's very likely considered fraud in the inducement, which means that they never intended to continue your employment when they demanded you sign, so the fraud might void the noncompete. The elements of fraud in the inducement are: 1) A false statement of material fact; 2) The person making the statement knew it was false or made the statement with reckless indifference as to its truth or falsity; 3) They made the statement knowing you'd rely on it; 4) You did rely on it and were damaged. Sounds like your situation.

Some states also recognize fraud by omission, where one party has special knowledge that the other party couldn't discover, or where they had a duty to disclose, and treat the omission the same as if they'd made a false statement. Unless something really drastic happened in those 10 days, such as losing a major customer or being hit by a meteor, the company probably knew you were going to be fired when you signed.

I looked for a place online that outlines the noncompete laws in all 50 states and found one here by the firm Beck Reed Riden LLP in Boston. Their chart says Kansas is one of the states that allows continued employment as valid consideration. However, if they never intended to continue your employment, that might also be a failure of consideration.

I'd suggest talking to an employee-side employment attorney in Kansas about your rights. You can search for attorneys by state on the National Employment Lawyers Association website. NELA members represent employees.

Can Customers Follow Me If I Don't Have a Non-Compete?

Here's a question from Arsalan:

Hi Donna,
I am switching jobs and going to another company who is a potential competitor to my current employer. There are clients at my current employer who are asking me if they can come to my new employer because they want me to provide them the services. I do not have a non-compete with my current employer. Should I encourage the clients to come to my new employer and it's asking for trouble.

Thanks!

 Hi Arsalan. If you don't have a noncompete, then make sure you don't have a non-solicitation agreement. That's an agreement saying you can't solicit the company's customers to follow you to your new employer or to leave/reduce business with your former employer. If you have neither, then you're probably free to do business with your former employer's customers.

A couple of things come to mind to watch out for. If the customers have contracts with your former employer, don't ask them to or encourage them to break or cancel the contracts. You might get sued for something called tortious inteference with a contractual relationship. If the customer already left them or intends to leave them, then you probably won't be tortiously interfering.

If the company has a confidential customer list, then be careful. You might get accused of violating trade secrets law if you take the customer list with you and start using it. You're better off using publicly available information if you can. For instance, if you sell a computer program for banking, get a banking directory or Google "banks" and start from there. In most states, publicly available information is not a legitimate interest for your former employer to protect even if you do have a noncompete.

When in doubt, talk to an employment lawyer in your state about your rights and responsibilities. Good luck!

That's all for the zombie Q&A for now. I'll try to resurrect some old questions again in a future post.