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, April 24, 2015

Madison Enacts Law Protecting Atheists Against Discrimination (But Atheists Are Already Protected Against Religious Discrimination Under Title VII)

While the anti-discrimination ordinance enacted in Madison, Wisconsin adding “nonreligion” to the list of protected categories was touted as the first of its kind in the nation, that’s not quite true. While it may well be the first ordinance specifically protecting those who have no religion, there is already a federal law protecting atheists against work place discrimination.

Under Title VII, the federal employment discrimination law, atheists have long been considered to be protected under the prohibition against religious discrimination. That doesn’t mean there’s no need for laws specifically protecting atheists against discrimination.

Indeed, atheists are one of the most discriminated against groups in the U.S. and the world.

While it’s unconstitutional to impose a religious test on candidates, seven states still have laws on the books requiring candidates to have a belief in god. Even though these laws would likely not pass legal muster if challenged, it’s still almost impossible for a professed nonbeliever to be elected in the U.S. Voters would prefer Muslim, gay or pretty much anyone to atheist candidates. Like gays in the past (and some still in the present), many atheists are closeted to avoid the stigma of simply not believing what others believe.O

According to the American Humanist Association: About half of Americans would object to their child marrying an atheist, and only 33% would hire an atheist in a child care position. Thirteen countries revoke citizenship, deny marriage and even kill atheists.

Whether you like them or not, it’s illegal for employers to discriminate against atheists. Further, if an atheist asks for a religious accommodation like being excused from a religious invocation at the beginning of staff meetings, the employer must grant the accommodation.

If a believer of any religion proselytizes to an atheist employee and the atheist asks them to stop, continued proselytizing could be illegal religious harassment. If an atheist employer goes to HR and reports this kind of harassment, HR needs to treat it the same as any other kind of religious harassment and nip it in the bud.

The reason I think this ordinance is a positive step is that many employers don’t realize atheists are legally protected. I hear, “That’s not a religion,” all too often. At least in Madison, it will be clear to employers that they can’t discriminate against those with no religion.

If you think you’ve been discriminated against at work, contact an employment lawyer in your state about your rights. And you do have rights.

Friday, April 17, 2015

How To End Sandwich Noncompetes?: Tie Them To CEO Pay

Problem 1: CEO Pay Gap

CEO pay has been in the news a lot lately, and for good reason. CEOs make, on average, about 300 times what their average workers make. Hillary Clinton has made CEO pay part of her campaign. Where CEO pay jumped an average 13% in 2014, rank and file workers saw only a 2% average increase. Fast food CEOs make $5859/hour, while their rank and file suffer below the poverty level at minimum wage. The pay gap at Disney between the CEO and median worker wages is 2238 to one.

And then there's this guy, who slashed his $1 million/year salary at Gravity Payments to provide a minimum salary at his corporation of $70,000/year. If you have a chance to do business with Gravity Payments, do it please. Let's support a truly decent CEO.

Problem 2: Rise In Minimum Wage Noncompetes

The other trend I'm seeing is the drastic increase in noncompete agreements among low-level workers, highlighted by the infamous Jimmy John's noncompetes for sandwich makers. One in four Americans have signed a noncompete agreement at some time and 12.5% say they're bound by one now.

While noncompete agreements are supposed to prevent high level workers who have important company secrets from running off and selling them to competitors, what they're being used for now is to prevent competition and lower wages. Yes, that's illegal. It's called antitrust. But many judges are convinced by management-side lawyers to apply them lower and lower on the food chain despite antitrust laws.

My Proposal: Pay 'Em Or Let 'Em Go

So here's my thought. If a worker has truly valuable information the company doesn't want them to run off with, surely they're paid well, right? I mean, you wouldn't hand your secret recipe to the minimum wage janitor, would you? Well, if you do, you shouldn't. And companies shouldn't be able to force employees to keep working for them when they don't pay them fairly.

My proposal is simple.Why not, in addition to saying noncompetes are only to protect valuable secret information, tie their enforceability to CEO pay? I propose a law that says noncompetes are not enforceable against anyone who doesn't make at least half what the CEO or other highest paid employee makes. Pay them handsomely to keep secrets and not work for a competitor, you get to force them to do so. Don't want to pay them? Let them go to a competitor and make a living elsewhere.

Maybe if noncompetes are tied to CEO pay, corporations will think twice about letting CEO pay run amok at the expense of rank and file workers.

Friday, April 10, 2015

How Not To Screw Up Your Severance Negotiation: Underbidding

So you've decided to negotiate your own severance package. If you're an experienced negotiator like a salesperson or mediator, then maybe you can handle it without screwing up. But if you aren't, then you may make some big mistakes. I thought I'd talk today about one of the worst mistakes you can make: underbidding.

Let's say you're fired or laid off and you are handed a severance package for 8 weeks of severance. You don't think. You run into HR and say you won't sign unless they give you 12 weeks. Done, they say.

But then you go home and think about it. You realize that you were let go a week after you reported age discrimination. Or you take a look at who else was targeted and it's everyone who had signed a petition to get management to raise wages. You have potential claims, and that means leverage. So you go see an employment lawyer.

Normally I'd tell you that I think you have leverage to ask for more, but you did ask for more, told them what you wanted, and they gave it. Now you've come to me to see if I can ask for even more.

I can tell you right now that this employer is almost certainly not going to negotiate any further with you or me. They gave you what you asked for. As they see it, if they give more, you'll keep asking for more. You underbid. You screwed up.

Or maybe they didn't accept your number, and you go to a lawyer to try to ask for more. Even then, most employers (and their lawyers) won't start a negotiation over what you last asking price was. Underbidding can cost you.

Here's what you should have done:

  1. Take the proposed agreement home and read it carefully, and if you don't understand it take it to a lawyer.
  2. Think about what potential claims you have against the employer. Did they fail to pay overtime? Discriminate based on age, race, pregnancy, sex, national origin or other protected category? Fire you right after you objected to something they were doing that was illegal? If so, write it down and take it to a lawyer along with the agreement.
  3. Don't try to negotiate for yourself if you aren't an experienced negotiator.
  4. Don't try to negotiate when you're still in shock from being told you don't have a job, no matter how much experience you have.

If you realize you underbid, then you'll likely have to pursue your legal remedies if you want to take the matter further. Whether that's filing with EEOC or NLRB, suing or filing a wage theft claim, you have to be ready to pass on what they've offered and take your chances with a legal case if you really think you asked for too little.

Only in the most exceptional circumstances, like discovering that they let everyone over 50 go or finding a smoking gun, will you be able to bring the employer back to the table if you underbid.

"He who represents himself has a fool for a client." Abraham Lincoln.

Monday, March 16, 2015

Backlash To Sandwich Noncompetes: Three States Propose Bills To Limit, Ban Noncompetes

After the world woke up and discovered a "secret" everyone who practices employment law already knew, that noncompete agreements are becoming so common even low-level employees like sandwich makers and dog groomers are being required to sign them to keep their jobs, four states are stepping up to change that. Whether the efforts will succeed is another story, but the discussion has finally begun.

Last year, Massachusetts engaged in a failed attempt to ban noncompete agreements because, as anyone with an economics degree can tell you, noncompetes are bad for economic development, especially in the tech sector. Efforts to pass legislation banning noncompetes in Massachusetts have redoubled and another bill is pending this year.

In Hawaii, a proposed bill would prohibit noncompete agreements in the tech sector. The state's Department of Education backs the legislation because it can't find enough qualified tech workers. "For employees of large consumer-oriented companies which do business with nearly everyone, a noncompete agreement tends to effectively eliminate nearly all viable options for employment within the state," the Superintendent of Education said in favor of the ban. "This encourages technology workers to move out of state to secure employment within their chosen field, thus reducing the available candidate pool to fill our most experienced positions."

A bill in New Mexico that would limit noncompete agreements with physicians has overwhelmingly passed in its Senate. New Mexico reports a physician shortage and they hope to alleviate it with this law.

On the flip side, abill getting the lots of press right now is the legislation to radically expand enforcement of noncompete agreements in Wisconsin. The legislation would have Wisconsin's pro-employee law on noncompetes turned into a horror show similar to the one we have right here in Florida. The bill includes gems like allowing employers to say, "sign or be fired" with no additional consideration than continued employment, barring courts from considering economic hardship on the employee, and allowing courts to rewrite the agreements in favor of employers. Even worse than Florida law, the courts won't be able to require employers to post a bond to protect employees from wrongfully issued injunctions.

So, while it looks like Jimmy Johns and its sandwich noncompetes has started a backlash against noncompetes in some states, in at least one Republicans are forging ahead to limit employee rights as much as they can while they can. Did they forget that employees are the very people who are also voters? Will voters in Wisconsin wake up? Will employees in Hawaii, New Mexico and Massachusetts push to regain their right to get a job (not to be confused with the Orwellian-named right to work laws, which are anti-employee laws)?

I'm glad Americans are finally talking about noncompete agreements. I hope voters will wake up in time to help themselves.

Monday, March 9, 2015

Is Incarceration The New Slavery? Does Cheap Labor Explain The U.S.'s High Incarceration Rates?

I was reading an article about Massachusetts inmates suing for minimum wage and it started me thinking. The U.S. has the highest incarceration rates in the world. We have about 2.2 million people in prison here. The shockingly high rates started a steep incline shortly after the passage of the Civil Rights Act of 1964. The Sentencing Project charts the incline:

Per the NAACP:
  • African Americans now constitute nearly 1 million of the total 2.3 million incarcerated population
  • African Americans are incarcerated at nearly six times the rate of whites
  • Together, African American and Hispanics comprised 58% of all prisoners in 2008, even though African Americans and Hispanics make up approximately one quarter of the US population
  • According to Unlocking America, if African American and Hispanics were incarcerated at the same rates of whites, today's prison and jail populations would decline by approximately 50%
  • One in six black men had been incarcerated as of 2001. If current trends continue, one in three black males born today can expect to spend time in prison during his lifetime
  • 1 in 100 African American women are in prison
The 13th Amendment has an exception to the abolition of slavery: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” The effect of this exception is that prisoners who work can be paid $1.00 an hour while working for private, for-profit companies that contract with the prison system for cheap labor. Further, private for-profit companies that run prisons in this country can get free labor for profit.

Prisoners aren't covered by the Fair Labor Standards Act and can't unionize or bargain for better wages. 

Why reform our criminal justice system when the effect is to reinstate slavery and indentured servitude on 2.2 million Americans, most of whom are minorities? Corporations exploiting this system of free and ultra-cheap labor have every incentive to make sure nothing changes, and that our rates of imprisonment keep going up. 

Wanna bet that incarceration rates would drop drastically if prisoners had to be paid minimum wage for their work? Are any elected officials concerned enough about this to do anything to reform this awful situation?

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.