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.

Friday, January 20, 2017

Cassandra Redux? How I Did On My 2016 #Emplaw Predictions

Every year I have done predictions for what I expected to happen in employment law and I'm usually right. After 30 years of law practice, it turns out I know stuff, despite what my teenagers say. Here's what I predicted for 2016 and how it turned out:

Political firings: I predicted a rash of political firings for discussing politics at work, and of course this happened. But it was less about the actual politics and more about the undercurrents. This year, there were more blatant comments about women, gays, the disabled and other protected groups than I've seen in my 30 years of law practice, and much of that was because of the tone of the political campaigns.

LGBT discrimination: I predicted that some states and localities would pass laws against LGBT discrimination, but my home state of Florida would fail again. That's exactly what happened. What I didn't predict was the rash of anti-gay legislation that would arise. From bathroom bills to religious exemptions, some states tried everything they could to put the screws to the gay community this year.

Obama to the rescue: I predicted the President would continue to be active with his pen and squeeze in some more pro-employee executive orders before he left office and he did. The new President says he'll reverse them all on his first day.

Clear choice: I predicted that the candidates for President would make their positions on working people very clear. That was certainly true. I told you to vote very carefully. I said you could easily lose many workplace rights if you vote wrong. Well, you're about to see how bad it can get.

EEOC step up: I predicted that EEOC would step up its activities in one final burst before the new President got a chance to gut it, and they did. There were a whole bunch of new guidances issued on mental disabilities, harassment, wellness notices, national origin, federal sector discrimination, retaliation, and affirmative action for people with disabilities.

NLRB step up: I predicted that NLRB would also try to help working people as much as it can while it still could, and that employers would complain bitterly. Yep.

Do-nothing Congress: I predicted Congress would do zip to help working people. They did nothing.

Criminalization: I said we'd see more employees arrested and prosecuted for things like trade secrets violations, whereas employers who steal wages would walk. That happened.

Joint employer: I predicted that whether franchises and placement agencies are joint employers with parent companies and the companies employees are placed with would be a hot issue this year and that the Supremes wouldn't decide the issue. That indeed continued to be a hot topic, with DOL and NLRB taking a big lead on the issue.

Guns at work redux
: I predicted that employees and the NRA would push to allow employees with concealed weapons permits to carry into the workplace. We did see more of those guns-at-work parking lot laws, and Florida legislators are trying to repeal a law prohibiting guns in airports (doh!). We didn't see the push to take the guns from the parking lots to the workplace this year, but that push is coming.

So, I did pretty well, even though 2016 was a year nobody could have predicted. Next up are my predictions for 2017.  Today, I'll be busy helping protect working people while they still have rights and ignoring the festivities in D.C.

Friday, January 6, 2017

What #Employmentlaw Regulations Will Trump Scrub?

As the inauguration gets closer, the new Trump Administration is making lots of promises about what they intend to do. Apparently number one on the list is undoing as many of the Obama Administration's Regulations and Executive Orders as they can. I already talked about some Executive Orders that benefit employees of federal contractors that are at risk. So what else may disappear or change soon?

Here are some employment-related regulations to keep an eye on:

These are just some examples of the many, many executive branch regulations that could change soon. The truth is that nobody has any idea what the new administration will actually do. Both employers and employees are justifiably nervous about what may happen in the next four years. Stay tuned.

Wednesday, December 21, 2016

Does Your Severance Agreement Have A Gotcha? Penn State Sues Former President For Hiding Sexual Molestation Charges

I see this kind of language in proposed severance agreements all the time. Something to the effect of, "Employee represents that he is unaware of any violations of any law, statute, ordinance or government regulation by Employer, its agents, employees, officers or directors." There are all kinds of problems with this seemingly benign language, as Penn State's former President may be about to find out.

You see, Penn State is countersuing Graham Spanier, who sued them for breach of his severance contract. Their claim is that Spanier knew of the former football coach's sexual misconduct and didn't disclose it. They say he had a duty to disclose. And if he had language in his severance agreement representing he didn't know of any legal violations by any of their employees, they may be right.

If he's in breach of his severance agreement, they may not have to pay the severance, or may get to demand he repay all or part of it.

The more common problem I see with language like this is that the severance agreement was presented after the employee raised issues of discrimination or blew the whistle on some illegal activity. My cure for that is to add to the clause, "that he hasn't already disclosed." That way, if he's disclosed race discrimination, unpaid wages or any other issues, he isn't lying that there were no such issues.

However, if you have any such language in your agreement, you'd better make sure you have disclosed every single legal violation you know of. Otherwise, you could be in trouble.

I'm not sure if Spanier's contract has this language. They seem to be alleging that he defrauded them by not disclosing material information, and that had they known he covered up Sandusky's misdeeds, they wouldn't have entered into the agreement. That's a whole 'nuther kettle of fish. Fraud is tough to prove. If they're trying to negate his contract based on fraud or some duty to disclose, I think they'll have a difficult time.

This case is a cautionary tale for anyone thinking about signing a severance agreement. Read it carefully and make sure you comply. If you can't, or it says something that isn't true, ask that it be changed before you sign.

Friday, December 9, 2016

Bye Bye Nursing Breaks: Preparing For The Trumpocalypse Part IV

If you are chomping at the bit to see the repeal of the Affordable Care Act, you probably don't know all that you are giving up. For instance, I bet you didn't realize that it was ObamaCare that brought us nursing breaks for moms.

That's right. It's the Fair Labor Standards Act which requires workplaces to give nursing moms reasonable breaks to express breast milk for a year after they give birth. The law also requires employers to provide a place, other than a restroom, shielded from view, free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

However, the amendment to the Fair Labor Standards Act that requires employers to do what basic human decency would provide anyhow was part of the Affordable Care Act.

Will Trump's repeal of the Affordable Care Act result in a repeal of this law? Right now Republicans are talking about wholesale repeal, and then maybe a grace period to find alternatives (although some want a repeal with no grace period).

In all the discussions about this repeal and what needs to be preserved, I have heard zero discussion about protecting nursing moms. Considering that Mr. Trump has called pregnancy an inconvenience to employers (then denied saying it, but he did say it), it seems unlikely that he gives one flying hoot about nursing moms in the workplace.

If you think this is an important part of the Affordable Care Act to preserve, it's time to write and call your members of Congress and Senators to tell them family values includes basic decency for new moms.

Friday, December 2, 2016

Federal Contractors, You Don't Know What You've Got 'Til It's Gone: Preparing for the Trumpocalypse Part III

President-elect Trump has promised to undo all of President Obama's executive orders on day one of his presidency. If you are one of those middle class folks who voted for him, you may not realize what you voted for until he does it. If you work for a federal contractor, you will lose a whole heck of a lot if he keeps this promise.

Here's what you've got that may be gone soon:
  • Paid sick leave: You will be entitled to one hour of paid sick leave for every 30 hours worked, starting in 2017. Since this is just a few days before the President leaves office, this order will not have much chance to actually go into effect.
  • LGBT discrimination: Gender identity discrimination by contractors is now illegal, along with sexual orientation discrimination. There is no federal law prohibiting this type of discrimination, although EEOC has argued with mixed success that the laws against sex discrimination protect against sexual orientation and sexual identity discrimination. I'm guessing the new president will tell them to stop that as well.
  • $10.10 minimum wage: Starting January 1, 2016, contractors have had to pay $10.10/hour as a minimum wage, and $5.85/hour to tipped employees. If you've been counting on this extra pay, you may lose it soon, so start adjusting your budget.
  • Right to work for a successor company: For service contracts of $150,000 and up, if a new company displaces an existing company, the employees of the predecessor must be offered first shot at jobs under the new contract. Service employees have to be told of their right of first refusal by either posting a notice or giving individual notice to the predecessor contractor’s employees. The predecessor contractor has to provide its successor an employee list by 30 days before the end of the contract. Now, you may have no right to retain your job when a new company takes over.
  • Blacklisting for employment/labor law violations: Anyone applying or bidding for a federal contract of $500,000 or more must currently disclose any employment or labor law violation. They must disclose any administrative merit determination, arbitral award or decision, or civil judgment rendered against them within the preceding three-year period for a violation of any of a list of labor and employment laws, plus they have to update their violation information every six months and, for some contracts, obtain the same violation information from their covered subcontractors. This means that federal contractors need to be very afraid of things like a "cause" finding from EEOC as the law currently stands. Punishment for repeat offenders can be up to cancellation or denial of a contract. But I'm guessing they are fearing much less these days, as this law will go poof soon.
  • No mandatory arbitration: The same order that bans blacklisting also bans agreements that require mandatory arbitration for discrimination and sexual harassment claims. Specifically, "for all contracts where the estimated value of the supplies acquired and services required exceeds $1 million, provisions in solicitations and clauses in contracts shall provide that contractors agree that the decision to arbitrate claims arising under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after such disputes arise." This also applies to subcontractors providing services or supplies over $1 million. Starting in January, your employer may be able to require arbitration again.

As with many protections President Obama helped create for employees, you won't know what you've got 'til it's gone. The middle class is up for some rude surprises very soon. Next time, vote better.

Monday, November 21, 2016

What Happens When The Feds Decide To Enforce Marijuana Laws? Preparing For The Trumpocalypse Part II

While four more states legalized marijuana for recreational use and four passed medical marijuana laws, meaning a majority of states now have some form of legal marijuana, it looks like the Trump administration may step up enforcement on the federal level. What does this mean for workers who need marijuana for disabilities? Nothing good.

So far, seven states have passed laws banning discrimination against medical marijuana users in the workplace. However, states that have laws prohibiting discrimination against employees for engaging in legal off duty activities have pretty much universally decided that, since marijuana is still illegal on the federal level, using it even with a prescription still isn't a legal off duty activity. The Americans With Disabilities Act still doesn't cover medical marijuana as a reasonable accommodation due to its illegality on the federal level.

While it has been looking like the feds were not going to enforce marijuana laws and therefore states with legalized marijuana were on their own to decide how to regulate pot use, it now looks like that may be reversed under Trump. This will embolden employers who want to crack down on employees who use medical marijuana.

If you think you can use marijuana in your state and not be fired, even with a prescription, you might want to wait and see how things fall out with the Trump administration.

Another issue with stepped up enforcement will be whether you can be fired for an arrest or a conviction. In most states you can. Plus, in most states employers can refuse to hire you with a record. This means that even in states that have laws against discriminating against medical marijuana users, you may be out of luck if you are arrested by the feds for your prescription.

Then, of course, there's the issue of prison, which obviously is a major concern. All of this is pretty terrible news for folks with cancer, multiple sclerosis, HIV, seizure disorders, Crohn's disease, epilepsy, concussion, Alzheimer's, bipolar disorder and other conditions that are helped by marijuana.

Bottom line is you'll have to wait and see what the Trump administration decides to do about marijuana before you get too comfortable using it for medical or recreational purposes.

Next time, vote better.

Monday, November 14, 2016

Preparing Yourself For The End of ObamaCare (Bracing for the Trumpocalypse Part I)

Well, Donald Trump is our President-elect. He has made a cascade of promises throughout the campaign, and many of them will affect the workplace. First up will be the repeal of the Affordable Care Act. That seems to be Republican priority number one. With control of the House, the Senate, the Presidency and soon the Supreme Court, they will get to do whatever they want for at least two years. So this is happening.

I'm going to write about all the laws/executive orders that will be affected by this so you can start to protect your family and yourself from economic disaster.

If you have a preexisting condition, it was ObamaCare that made it illegal to deny insurance coverage to you. That means when ObamaCare is appealed, you may never get insurance coverage again. If you are one of the 16.64 million Americans who are insured due to ObamaCare, you may lose that coverage. There has been some backpedaling such that maybe the preexisting condition provisions will stay when other provisions are repealed. We have no idea what, if anything, will replace the Affordable Care Act or if any of it will remain, and we have no idea how soon this may happen. I suggest preparing for repeal with zero replacement.

Here are some things you can do to help prepare yourself for the repeal of the Affordable Care Act, which could happen as early as January or February 2017:

  1. Ask your insurance company what they plan to do. If ObamaCare is appealed, you may be dropped by your insurance plan. The first thing to do is ask what they plan to do. They may not even know what they plan to do yet if ACA is repealed, so stay vigilant. Read all those inserts they send you. Set a Google alert for your insurance company name and "Affordable Care Act."
  2. Start looking for alternative plans. Find an insurance agent you trust who can point you to alternative plans if you lose coverage. Know which plan you will pick before you lose your insurance so you can switch quickly.
  3. Encourage your employer to have an insurance plan. I know this seems like a long shot, but many employers have health insurance to keep good employees, to improve morale and also to improve attendance. Healthy employees show up more. 
  4. Unionize. If your company won't provide insurance voluntarily, you have the right to discuss working conditions with coworkers and try to organize them. That includes the right to unionize. It may be time to unionize your workplace to protect yourselves against the upcoming war on workers.
  5. Look for a job with insurance. Now might be a good time to find alternative employment that does have insurance if your job doesn't cover you.
  6. Put money in your health care savings. Many employers offer a health savings account. If you have a preexisting condition and may not be able to keep insurance, this may be your best option for now. It won't stop the catastrophic loss that will occur if you are hospitalized, but it will help with regular doctor bills.
  7. Switch to your spouse's insurance. If your spouse's employer has insurance coverage, now is the time to switch from your Affordable Care Act insurance.

The Trump win has already affected the way I advise clients. I used to advise people who lose their jobs to look at their Affordable Care Act options along with COBRA, because ACA is almost always cheaper than COBRA, which is crazy expensive. It was nice while it lasted, but now I'm telling people not to sign up for ACA and to elect COBRA if they can because ACA won't be around much longer.

This is literally a matter of life and death for many people. Next time, vote better.