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.

Saturday, July 26, 2014

Miami-Dade Court Rules In Favor Of Gay Marriage

As I predicted yesterday in my post about the Key West ruling favoring gay marriage, the other Florida courts that have cases pending on same-sex marriage are starting to rule. Miami-Dade Judge Sarah Zabel ruled yesterday (after my blog post) that denying gay marriage violates the Equal Protection Clause of the U.S. Constitution.

Don't rush to Miami yet. The judge stayed her ruling pending appeal.

Will any Florida clerks of court have the guts to start issuing licenses because they swore to uphold the U.S. Constitution? The BoulderDenver and Pueblo Colorado clerks did. Stay tuned.

Friday, July 25, 2014

Now That Florida Has Gay Marriage, How Does That Affect Employee Rights?

Okay, okay. I know we don't have gay marriage in Florida quite yet. The July 17 Florida ruling on gay marriage only applies to the Keys, and it's stayed pending appeal. Still, there are multiple cases pending around the state, and it's only a matter of time before someone starts issuing licenses and performing marriages.

How does that affect employee rights? There are several ways Florida employees and employers will be impacted once gay marriage starts happening in Florida, so start preparing now:

Family and Medical Leave: Because FMLA applies to leave for care of spouses, Florida employers will have to start granting leave for gay employees who are married. If you have a sick partner and are married, you may qualify for FMLA leave, assuming your employer is large enough and you've been there at least a year. Start gathering those forms and have them ready for your spouse's doctor to fill out so you can put in for leave once you're married if your partner is sick.

Pensions: Spousal benefits will have to be updated to include gay married couples. You will need to make sure you adjust any defined benefit plans if you want to include your new spouse.

Benefits: Health and life insurance will have to be updated to include spouses of gay employees. If your new spouse needs coverage, you need to contact HR to get them on the plan ASAP.

Marital status discrimination: While it still isn't illegal in Florida to discriminate based on sexual orientation, except in some counties and cities, it will be illegal to discriminate against employees just because you don't believe in gay marriage or don't like that they married a same-sex partner. If your employer starts treating you differently after your marriage, you may have a discrimination claim.

Tax filing status: Once you're married, you'll be able to update your tax filing status and employers will have to deal with updated W-4 forms with revised withholdings.

Confidentiality: If you have an agreement that says it can't be disclosed to anyone but your spouse, you may now disclose it to your married partner. This is one of the things I always have to caution unmarried couples, gay or straight about. You could be severely sanctioned if you tell a boyfriend/girlfriend/partner about, say, how much severance you got. All they have to do to mess you up is tell the employer they know what you got and all hell will break loose. Once you're married, you can probably tell and not be sanctioned for it.

Privilege: I absolutely hate having to exclude gay partners from attorney-client meetings, but it's necessary so there's no waiver of attorney-client privilege. Once you're married, your spouse can attend even attorney-client meetings with your permission.

Start planning now, because it's going to start happening very soon. Have your plan in place as to how you will protect your spouse before you say, "I do." And Florida employers, best have your management-side lawyer start updating your policies and forms to make sure you aren't caught flat-footed.

Monday, July 21, 2014

Do I Have Workplace Rights If I Work In An Indian Casino?

An AOL Jobs reader asked:
I work security at an Indian Casino in California. I'm not sure how state overtime laws apply to Indian Casinos, but my workplace requires me to arrive early, get in uniform and clock in before I'm scheduled to start (no more than seven minutes prior to start). And if we're more than one minute late, we're penalized. What can be done?
I get questions about liability of tribal casinos a lot because my office is just a few miles from a major one here in Florida. In general, Native American reservations are considered to be on sovereign soil, and therefore the tribes are usually not subject to U.S. employment laws. The tribes have sovereign immunity, the same as if they were a foreign country. Tribes can waive sovereign immunity in contracts, so if you have an employment contract it's possible, but not very likely, that you have a waiver of immunity in your contract.

To find out what laws might protect you if you work for a Native American tribe, read my article Do I Have Workplace Rights If I Work In An Indian Casino?

Friday, July 18, 2014

What Does It Mean Now That My Employer Has A Religion?

Or, Crazy Stuff The Supreme Court Did While I Was On Vacation

So there I am in California, land of actual employee rights, when I see the Supremes ruled on a case involving Hobby Lobby.  As I'm reading the opinion, I'm thinking maybe I just have vacation brain. I can't be reading this right. Then I look to see what Justice Ginsberg said in the dissent and I realized I wasn't misreading the opinion. Here's what she said about it:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.

Hm. What does this mean? A corporation can have a religion now? Yep. Although this decision was about closely held corporations (think family-owned), the Court didn't limit the decision in any way. They left open the possibility that larger corporations can now find religion.

This case was about the Religious Freedom Restoration Act, which included corporations in the definition of a "person," so maybe it was just a congressional screw-up. The Court said that a company with owners that had a sincerely-held religious belief that life begins at conception didn't have to provide health insurance coverage under the Affordable Care Act.

Although Justice Alito said in the majority opinion that the government has a compelling interest in providing equal opportunity in the workforce regarding race, he failed to mention, for instance, gender. He certainly didn't mention any compelling interest in preventing sexual orientation discrimination, which may be what this is really about.

The Hobby Lobby case didn't address the gender discrimination involved in denying coverage for contraception, but you can bet there will be a case filed against them soon for sex discrimination on this very issue. And the female employees should probably win it.

I think there will be quite a few unintended consequences of this decision. Here are some things we don't know:

  • Can a Christian Science-owned corporation refuse to provide coverage altogether?
  • Can a Rastafarian-owned corporation refuse to provide coverage for employees who aren't using medical marijuana?
  • Can an ethical vegan-owned corporation refuse to provide coverage for carnivores?
  • Can a corporation refuse to hire women because of a sincere belief that women belong in the home?
  • Can a corporation refuse to promote women because of a sincere belief that women should be subordinate to men?
  • If a corporation holds the religious beliefs of its owners, does that make it easier to pierce the corporate veil and prove the company and owners are one and the same?
  • Did the Supreme Court just approve the use of Sharia law by Muslim-owned corporations?
  • How long will it be before corporation-persons demand the right to vote?

I guess we'll soon see all of these issues litigated in a courthouse free-for-all that will be terrible for everyone but the lawyers.


Tuesday, July 15, 2014

How Do I Prove Sexual Harassment?

An AOL Jobs reader asked:

I was just wondering if I will get in trouble for bringing light to my situation at work, I'm being sexually harassed by my supervisor. It started back in July and I've made multiple complaints, nothing has been done except the incidents have been "documentedIt's very uncomfortable to work with him because he retaliates by making me work late so I have to stay there with him. I even called corporate and they told me I need to continue to work with him and let them know how it goes. It's not fair and I thought harassment would be taken more seriously. I work for a big company so I'm scared. I'm tired of everyone else not speaking up though so I don't care anymore. The management and human resources are corrupted, they don't follow their own policies. I've already contacted news stations trying to get them to publish my story because no one's on my side. A lawyer said it would be too hard to prove this in court. Something must be done. Tomorrow I will be contacting the EEOC. Could you please give some advice on this situation?
No doubt, proving sexual harassment can be difficult, because it is usually your word against the harasser's. Still, you shouldn't just continue to be sexually harassed without taking action. 

To read about eight steps you can take if you're the victim of sexual harassment at work, read my article How Do I Prove Sexual Harassment?

Friday, July 11, 2014

Can My Employer Ban Me From Speaking Spanish To Co-Workers?

An AOL Jobs reader asked:
Good afternoon, I have a question. I was just told by my supervisor that I cannot speak Spanish to my coworkers in our department. She states that some other non-Spanish speaking workers claim it makes them uncomfortable. I am asked to assist Spanish-speaking customers with no additional pay, but this is not a concern. I will certainly comply with this request, but I am not sure if it is fair or even legal. I hope you can clarify this for me. Thank you for your assistance.
I'm always surprised how many employers try to impose English-only policies or ban speaking a particular language when there are so few circumstances where such a policy would be legal. Most English-only policies at work violate the laws against national origin discrimination.

Take a look at my article Can My Employer Ban Me From Speaking Spanish To Co-Workers? to find out more about English-only policies in the workplace.

Tuesday, July 8, 2014

What Every Teen Needs To Know About Getting Paid At Work

I wrote about general workplace rights teens and young adults need to know. And before that I wrote about workplace sexual harassment. But there's even more you probably didn't learn about work when you were in school. I bet your high school and college didn't tell you about what you're entitled to be paid under the law, what hours you're allowed to work, how to figure out if your internship should be paid, and allowable work breaks, did they?

If you're a teen or young adult starting or looking for a summer job or internship, getting paid (or getting a meaningful learning experience) is one of the most important things. Otherwise, you could be at the beach or ziplining. If you're a parent, friend, guardian or relative of someone entering the workforce for the first time, make sure they know their rights on getting paid. Otherwise, they'll be hitting you up for funds, right? No worries. 

Read my article What Every Teen Needs To Know About Getting Paid At Work to find out what you need to know about teen and young adult wages, hours, unpaid internships and breaks.