Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Monday, March 2, 2015

Two First Amendment Rights, Only One Protected: Last Man Standing (Sort Of) Gets It Right

One of my guilty pleasures is watching Tim Allen's show Last Man Standing. Guilty because, unlike the very apolitical Home Improvement, Tim Allen uses his new vehicle to take some slaps at President Obama and liberals in general. In a recent episode, Three Sundays, they addressed two rights protected by the First Amendment, how these rights play out in the workplace, and sorta kinda got them right. However, they didn't explain why one right was protected and one wasn't so I will.

Free Speech: The first issue was the right to free expression. Ryan, the despised-because-he's-a-liberal father of Mike's (the Allen character's) grandchild, has a blog where he posts pictures and criticizes situations he finds on the road (where he's a trucker for a beer company), such as environmental issues and encroachments on Native American land. His company takes umbrage and demands he take down the blog. The problem? He's wearing his uniform in the pictures. Mike tells him it's the right choice to take down the photos. Ryan asks, "I thought you supported my right to free speech, Mike?" Mike responds, "I do, but I also support your company's right to tell you to stuff it."

Mike got it right. As I've said before, the First Amendment doesn't protect your right to free speech at work. People freaked out when I wrote about this in the context of Duck Dynasty. Fewer cared about Ozzie Guillen when he commented about his love for Fidel. Your employer can fire you if they don't like your speech at work. The one exception that's notable is that they can't fire you if you aren't a supervisor and are talking to coworkers or to management on behalf of coworkers about working conditions. Had Ryan's blog been about working conditions then it may well have been protected.

Freedom of Religion: Kyle, the not-so-bright coworker and boyfriend of one of Mike's daughters, is being forced to work on Sundays and he wants time off to go to church. He asks Mike: "Do I have an amendment for my freedom of religion?" Mike says, "It's the same one.You can practice whatever religion you want. Nobody can tell you any different." Kyle then goes on to insist that his boss give him time off for church on Sundays. Here's where the show missed the boat. Kyle's right to have time off isn't from the First Amendment. It's from Title VII, the anti-discrimination law so hated by conservatives like Allen. Among other things, that law requires employers to grant reasonable accommodations for religious reasons and religious practices.

So, while you have rights under the First Amendment, those right aren't protected at work. However, federal and state discrimination laws protect you from religious discrimination. Will we hear Allen making any pro-Title VII comments on the show? Doubtful. And that's probably why he didn't mention it on the show. Title VII protects everyone - black, white, Hispanic, Protestant, Muslim, Atheist, Cuban, American, male, female -from discrimination at work. It probably protects you. It even protects Tim Allen in his workplace, real or fictional.

Monday, February 23, 2015

More Pro-Employee Bills To Watch In The Florida Legislature

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

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

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

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

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

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

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

Monday, February 16, 2015

Florida Bill Would Make It A Crime To Change Male Baby's Diaper In Ladies' Room

In a proposed bill directed at legalizing both discrimination and harassment of transgendered people, Florida Representative Frank Artiles (R- Hell, er, I mean, Miami) has proposed a bill making it a crime for a person born of one sex to enter a public restroom designated for the other sex. The point, I believe is to maximize humiliation and embarrassment for both pre- and post-op transgendered citizens and tourists of Florida.

The bill says:
"Sex" means a person's biological sex, either male or female, at birth. For purposes of this paragraph, the term "male" means a person born as a biological male and the term "female" means a person born as a biological female.
The crime:
A person who knowingly and willfully enters a single-sex public facility designated for or restricted to persons of the other biological sex commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
The supposed purpose:
The purpose of this act is to secure privacy and safety for all individuals using single-sex public facilities.
It even provides that you can sue the person who enters the restroom and the owner of the restroom:

A person who knowingly and willfully enters a single-sex public facility designated for the other biological sex is liable in a civil action to any person who is lawfully using the same single-sex public facility at the time of the unlawful entry for the damages caused by the unlawful entry, together with reasonable attorney fees and costs.
An owner of public accommodations, a school, or a place of employment who maintains single-sex public facilities and advertises, promotes, or encourages use of those facilities in violation of subsection (2), or fails to take reasonable remedial measures after learning of such use, is liable in a civil action to any person who is lawfully using those facilities at the time of the unlawful entry for the damages caused by the unlawful entry, together with reasonable attorney fees and costs.
So let's think about the effect of this really stupid bill.  Here are just some of the ridiculous consequences that will result if passed:

  1. You're a business owner. A harried mom with a baby and a male toddler asks for directions to the ladies' room. You don't stand and bar the door. Instead, you're a human being. You direct her to the restroom. You can be sued. The male toddler can be arrested. If the baby is male, he can possibly be arrested, or the mom could be arrested for contributing to the delinquency of a minor.
  2. You're a business owner. A major client was born male but dresses as a female, considers herself female, and has had the operation to become female. You can't let her use the ladies' room. Bye, bye client.
  3. You're in the ladies' room. A person who dresses like a male, has a beard, and a low voice enters the ladies' room. Oh, yeah. He has a penis. It turns out the male was born female. Not only do you have to let him use the facility, but the business owner will be sued if they try to prevent this. 
  4. You were born male but dress as a female. You consider yourself female. Your coworkers and boss have accepted you as a female. It is a crime for you to use the ladies' room. You have to use the men's room, explain to customers why you are in the men's room, and risk being attacked in the men's room by anyone who is either homophobic or just a rapist. 
  5. You're a middle school principal. Some 12-year-old boys think it's hilarious to toss a mouse into the girl's room. The girls scream. You catch the boys running away. The school can be sued if it fails to take unspecified "remedial measures" regarding the prank, and the boys just committed a crime.
  6. You're an employer. Your employee is a female who identifies as male. She dresses like a male, has taken hormones that cause her to have a beard, and goes by a male name. You have to require him to use the ladies' room. Your female employees object and say it's sexual harassment to have him there. Female customers object. You're damned if you do and damned if you don't let him use the men's room. You're sued either way.

As a female who identifies as female, I really don't appreciate the Florida legislature telling me that I have to share the ladies' room with a female-born who identifies as a male, nor that I would have to leave a male toddler outside the ladies' room in order to use it. As a business owner, I don't appreciate the Florida legislature telling me I have to humiliate a client or an employee.

This is the dumbest thing I've ever seen out of the Florida legislature, and that includes the fact that they failed to pass a law against bestiality for years, until it finally passed in 2011 (apparently the pro-bestiality lobby is strong in Florida). Hopefully the Florida legislature will realize this bill for the dumba** proposition it is and vote it down.

I'm not optimistic.

Monday, February 9, 2015

Odds Of Getting EEOC To File Suit For You? Not Much Better Than Odds Of Getting Struck By Lightning

EEOC has issued its 2014 Performance Report and the big news everyone announced was that the number of charges dropped. What I found disturbing when I read the summary was that there were 88,778 charges filed nationwide, and of those EEOC only filed 133 "merit" suits, that is, suits where they found cause and decided to sue on behalf of an individual or group of employees.

So the odds of having EEOC sue on your behalf are .1% (133/88778=.001), or about 1 in 1000. Now, when I'm telling clients that they shouldn't hold their breath and hope for EEOC to file suit on their behalf, I usually say that the odds are about the same as getting struck by lightning, and I laugh. I thought I was being facetious. So I looked it up.

The odds of getting struck by lightning in your lifetime are about 1/3000. So you're about three times as likely to have EEOC file a suit on your behalf as you are to be struck by lightning. Not great odds.

Here in Florida, the odds of getting struck by lightning in your lifetime are probably higher. There were 7528 EEOC charges filed in Florida in 2014. I've asked for the number of merit suits filed and if it isn't more than 3 (I only found press releases for two) then the odds here are about the same as getting struck.

So, when employers complain that EEOC isn't fair to them, I'll add this to my list of why I'll only play them the world's smallest violin.

Monday, February 2, 2015

Can Your Employer Force You To Sign A Contract Saying You Volunteered To Work On Sunday?

It's been awhile since I answered my reader questions here. This question is one I found interesting:

I have a question about unfair work practices. My husband works for a very large company that does extremely high volume during the Christmas season. All employees were required to work on Sunday (following a six day work week). They were told that everyone was expected to be there despite the fact that no one had a day off during the week. This morning when they arrived, they were told that they had to sign a document that said they had volunteered to work on Sunday, otherwise they would be sent home. Most of them signed because they were already there and had planned on working today. Are companies allowed to do something like this?

I can read this question three different ways, so I'll address them all. 

Agreement to volunteer to work for free: The first way I read it is whether your employer can make you sign an agreement that you are a volunteer so as to avoid paying you. The answer is a flat-out no. An agreement that tries to waive your right to overtime or to be paid for all hours worked under the Fair Labor Standards Act is not enforceable. Furthermore, if you work for a for-profit company, you are never a "volunteer" such that you can agree to work for no pay. If the employer suffers or permits you to work, then you are entitled to pay.

Agreement to waive religious accommodation: If you have requested a religious accommodation to work on Sunday, then the EEOC and courts would refuse to enforce an agreement waiving future discrimination. In other words, you can't be forced to sign an agreement to be discriminated against in the future. On the other hand, where states like Florida allow employees to be required to sign agreements in consideration of continued employment, if the employer handed you an agreement on Monday that said you were agreeing that you waived your right to sue for religious discrimination because you worked voluntarily on Sunday, would that stand? The truth is, maybe. The courts have been very harsh on employees regarding noncompete agreements and arbitration agreements that are presented as "sign or be fired," so would a "sign or be fired" release fly? I think probably not, but I'd never underestimate the ability of employers to push for case law that grinds employees' rights into dust. Allowing a waiver like that immediately after an act of discrimination for the sole consideration of continued employment would make a mockery of the employment discrimination laws. If an employer presents you with an agreement saying sign a waiver of discrimination that just happened or be fired, I think that would be unlawful retaliation and discrimination.

Agreement to work on Sunday: If the agreement simply says that you agree to work on Sunday, and you don't have any need for a religious accommodation, then your employer can make you sign an agreement to work on Sundays, and they can say you voluntarily agreed to work on Sundays. Which I guess is true, if they mean you "voluntarily," under threat of losing your job, decided to sign. If you live in one of those states like Florida that doesn't consider "sign or be fired" to be economic duress, then they can probably make you agree.

Monday, January 26, 2015

Employment Law Bills Pending In The Florida Legislature

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

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

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

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

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

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

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

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

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

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

Monday, January 19, 2015

What I See In My Crystal Ball For Employment Law In 2015

So far I've been pretty prescient in my annual predictions, so better pay attention here. My predictions for what will happen on the employment law scene in 2015 are:

1. Intern sexual harassment: With Broward County moving to develop an ordinance to ban sexual harassment of interns, can Miami-Dade County be far behind? While I predict a bill will be introduced in the Florida legislature, Republicans in charge of both houses and the governorship will block it. Who can be in favor of sexual harassment of our teenagers? I'm guessing pretty much anyone who has an elephant as their symbol. On the national front, we'll see a move afoot in other states to pass a law similar to the ones passed in California, New York, Oregon and Illinois.

2. Micro-unions: As the NLRB flexes its muscles to ease union organizing, and big unions like AFL-CIO pushing organization of smaller units, the union movement will slowly start coming back swinging. Employees who realize they have been getting the short end of the stick will start organization efforts of smaller groups. Micro-unions will start popping up more this year.

3. Minimum wage: 2014 was a huge year for minimum wage increases, and employees will continue fighting for raises in 2015. It won't be as big a year for increases because it isn't an election year, but we'll see some more states and local governments raise the minimum wage to over $10/hour.

4. Obama as employee advocate: Now that he has nothing to lose, President Obama will continue to use executive orders to push for employee rights. He has just penned expansions to federal employee and federal contractor employees' minimum wage and medical leave, and to help immigrant-employees. He'll do everything he can with his pen to expand worker rights. His push to pass a paid sick leave law will fail. Members of Congress with elephantitis will do everything they can to make sure workers remain oppressed.

5. Gay marriage: Having reached the tipping point with a solid majority of states legalizing gay marriage, we'll continue to see marriage equality expand. This may not be the year for complete legalization, but it's all over but the shouting for pro-discrimination folks.

6. Marijuana: Legalized marijuana and medical marijuana will continue to expand. Employees who use marijuana for medical purposes will continue to get fired as employers fail to wake up to the fact that marijuana actually helps people and isn't as bad as, say, codeine or benadryl for workers on duty.

7. Republican roll-back: The President will have to exercise his veto pen lots this year, as Republicans try to roll back worker rights. Look for very excited Rs to try to roll back the Fair Labor Standards Act, National Labor Relations Act, ObamaCare, safety laws, discrimination laws, and pretty much every pro-employee law they can think of. They long for the days of the Triangle Shirtwaist Factory. The President will promptly veto all such attempts, which will egg them on to even more extreme positions.

8. Noncompetes come into question: With Jimmy Johns and other minimum wage noncompete agreements coming to light, legislators are starting to wake up to the abuses that these agreements impose on employees. We'll start to see some antitrust investigations of the more extreme noncompete agreements. There will be another effort in Massachusetts to ban them, but it will likely fail as both parties cave to employer interests. This won't be the year states start banning or limiting them, but eyes will start to open.

9. Gridlock: Not difficult at all to predict will be that zero will actually happen on the national level. ENDA, Civil Rights Tax Fairness Act, FAMILY Act, and Arbitration Fairness Act are just some of the laws that will die a horrible death this year. It will be at least two years before anything at all can get done in the way of national legislation.

10. Ban the box: More states and local governments will ban employers from asking about arrests and convictions on applications, and will limit the use of convictions found in background checks to those that are actually relevant to the job sought.

That's all for this year's predictions. How do you think I will do? What are your predictions? Tell me about your thoughts in the comments section.