Employment Law Blog Carnival, We Are Family Edition

It's time for me to host the ever-enlightening Employment Law Blog Carnival, that wonderful monthly collection of the best employment and HR blogs in the blogosphere. Because I hosted this time last year, I'm not doing yet another tribute to Mother's Day. Instead, I looked for a less obvious holiday to celebrate with this new edition of ELBC.

May is National Family Month, so welcome to the We Are Family edition of the Employment Law Blog Carnival.

Lorene Schaefer in Win-Win HR points out that we aren't too different from our monkey relatives, in that we know when we're slighted and don't appreciate it. Her post,  Screw You And Your Cucumber Too - Even Monkeys Demand Equal Pay for Equal Work (love the title - can you guess why?) tells employers why they shouldn't monkey around with equal pay.

Dads are entitled to paternity leave, but Randy Enochs in Wisconsin Employment & Labor Law Blog bemoans the fact that Study Shows That Few Dads Take Advantage of Paternity Leave. C'mon dads. Take the time to bond with the new baby.

Every teenager knows you don't give out your social media passwords, especially to family members. So why does NJ Gov. Christie want your password? In NJ Gov. Christie Vetoes Proposed Workplace Social Media Law, Eric B. Meyer in The Employer Handbook explains why the big guy didn't like the law prohibiting NJ employers from asking for employee social media passwords. And really, why wouldn't you want to trust a NJ politician with your passwords?

Families are changing, and so must the law. Heather Bussing, in HR Examiner, tells what to do When An Employee Says I'm Gay.  It's a terrific step-by-step how-to for everything from terminology and applicable laws to bathrooms and workplace violence.

Your Canadian relatives have probably headed back home from their winter hideaway in my state by now. We Floridians will miss them so. Stuart Rudner offers the Canadian perspective (which is way, way better for employees) in the Canadian HR Reporter with Employment Agreements Avoid Awkward Hiring Situations. They can help here too, so Stuart's article offers helpful advice to any employer who is preparing an offer letter to a new employee.

Thanksgiving dinner isn't the only time we should be reminded about all the genetic glitches in our families. In The Emplawyerologist, Janette Levey Frisch does two posts on GINA, that very confusing law about genetic information discrimination. In What Does GINA Have To Do With Employment Law Practices, she breaks it down for you and tells you why you should care about this relatively new and misunderstood law. In How Are Employers Faring (In Court) Under GINA, she enlightens us on some recent cases employers won, and a pending case that may "stick" against an employer.

Every family has one black sheep, and sometimes that's because of drug use. Ari Rosenstein in CPE HR's Small Biz HR Blog tells businesses what they can do about drug abuse in the workplace in Substance Abuse and the Drug-Free Workplace Act.

Most of us here in South Florida have family or friends from other countries. It makes living here way more fun and interesting, but Homeland Security is watching those immigrants when you do your hiring. Nilesh Patel of the Mahadev Law Group blog updates us on the new forms employers must use to verify that employees are legal to work in the U.S. in New I-9 Forms.

Our Canadian brothers and sisters prove they can one-up us in something besides hockey. In A Workplace Harassment Case for the Record Books, Dawn Lomer in the iSight blog shares a story of a poisoned workplace atmosphere that Canadians found shockingly illegal (but would probably be just another case of legal workplace bullying here, sad to say). Oh, Canada. Why can't we follow your lead? Except the mayo on fries. You can keep that.

Just in time for National Family Month, Philip Miles in Lawffice Space tells a cautionary tale about working for family, especially if they don't like your sudden spiritual awakening, in 3d. Circuit: Shareholder not "Employee" Under Title VII.

Just like children, you must teach your employees well. Michael Haberman in the HR Observations Blog implores employers to Teach Employees About Sexual Harassment.

Many families have that embarrassing relative who can't stop with the racial slurs at family gatherings. Fortunately, the law protects you if your supervisor spews out racial slurs. In Fitzpatrick on Employment Law, Robert Fitzpatrick tells about a case where one racial slur was enough to create an illegal hostile environment in Racial Slur Sufficient to Support Claim Against Fannie Mae.

Nobody wants to hear Uncle Hal droning on and on about nothing, and your employees don't want to attend trainings that go on and on about nothing either. In Designing an Engaging Workplace Harassment Training, Stephanie Hammerwood in Blogging4Jobs talks about how to get employees to actually pay attention to all those expensive harassment trainings you send them to.

Mario Bordogna in Employment Essentials explains how the DC Circuit is as annoying to NLRB as your siblings are to you in Following Noel Canning, The DC Circuit Again Overturns NLRB Action & Invalidates Notice Posting Requirement.

Every parent knows you need to teach the kids what they should and shouldn't post in social media. One of my favorite verbal sparring partners, Jon Hyman, offers some good advice to employers about social media training in the Ohio Employer Lawyer's Blog in With Social Media, All Of Your Employees are Brand Ambassadors; Train Them Accordingly. Of course, employers can always turn over their social media passwords to NJ Gov. Christie and let him handle it . . .

Family loves to give advice, and so does the NLRB. John Holmquist, in Michigan Employment Law Connection, analyzes NLRB advice on confidentiality in NLRB "Advice" Concerning Employer Investigations.

Do-it-yourself projects can cause lots of family strife. Same if you try to write a do-it-yourself employee handbook. In the DamnedIf blog (love the name), Adam Whitney explains why in Using Standard Form Employee Handbooks; Damned If You Do, Damned If You Don't.

There's really nothing worse for a parent than outliving a child. In the Musings blog, Crystal Spraggins explains why grieving parents should be covered under FMLA in Proposed Amendment to FMLA Would Provide Leave For Grieving Parents.

Health care is important for any family, since there's no quicker way to go bankrupt than to enter a hospital while uninsured. My associate, Ryan Price, did a terrific guest post (I'm not biased at all) right here in my blog, Screw You Guys, I'm Going Home, on how employees will have new protections soon against employers who discriminate based on employee health care decisions in The "New" Discrimination: Retaliation Based on Health Care Rights.

That's all for the We Are Family Edition of the Employment Law Blog Carnival. Join us again next month at a different location for the best employment law blogs, together in one handy place.

The “New” Discrimination: Retaliation Based on Health Care Rights

Guest post by Ryan Price, Associate Attorney, Donna M. Ballman, P.A., Employee Advocacy Attorneys

If you don’t already know, the Affordable Care Act (“ACA”), a/k/a Obama Care, does not take effect all at once. (I say “if you don’t already know,” because a recent poll shows that 42% of Americans are unaware that Obama Care is currently the law of the land).

Title I of the Act, which is considered one of the most controversial parts of the Act, does not take effect until next year. Once it takes effect, employers may not make employment decisions based on an employee’s health care decisions. Employers will, of course, make decisions that impact employees negatively, because the ACA will increase employers’ costs and responsibilities associated with health care. This is why employees need to be aware of their new rights.

You have probably heard about the many employers who have started cutting employee hours to evade having to comply with Obama Care. If you’re one of them, you’re out of luck. The law doesn’t protect you yet.

Starting on January 1, 2014, an employer may not retaliate against you based upon your health care selections. Specifically, an employer cannot terminate, demote, discipline, intimidate, threaten, deny benefits or promotion, reduce pay or hours, blacklist, or fail to hire an employee based on the fact that the employee:

• Provided information relating to any violation of Title I of the ACA, or any act that he or she reasonably believed to be a violation of Title I of the ACA to the employer, the Federal Government, or the attorney general of a state;
• Testified, assisted, or participated in a proceeding concerning a violation of Title I of the ACA, or is about to do so; 
• Objected to or refused to participate in any activity that he or she reasonably believed to be in violation of Title I of the ACA; or 
• Received a credit under section 36B of the Internal Revenue Code of 1986 or a cost sharing reduction under section 1402 of the ACA. 

If an employer retaliates against you for engaging in any of these activities after January 1, 2014, you may file a complaint with the Occupational Health and Safety Administration (“OSHA”). OSHA has a broad range of powers to help employees combat the “evildoer” employers, including the powers of investigation, enforcement, negotiation, settlement, and the ability to award damages. The employee’s first, and critical step, is to file a claim with OSHA within 180 days from the date of retaliation.

Unlike most employment discrimination cases, the standard for proving retaliation in these cases is much more employee-friendly. You only need to demonstrate you had a reasonable belief that the employer was retaliating against you. Further, you will only need to provide evidence that your health care decision was a factor in the retaliation, not the only factor in retaliation. Hopefully, employers will have a much more difficult time defending against these types of discrimination cases. With any luck, this will deter them from violating the ACA in the first place.

Check in with us next year for updates on this law and a breakdown of the inevitable lawsuits to follow its implementation in 2014.

Non-Compete Agreements Can't Be Used to Prevent Competition

Whether you work in the copy room or in a corner office, you may have been presented with something called a Non-Competition Agreement. Or maybe it was called something sneakier, like a Confidentiality Agreement or Intellectual Property Agreement. Whatever it was called, it said you can't work for a competitor of the company for a year or two after you leave.

If you haven't been forced to sign one yet, beware. They're all the rage with management these days. Physicians, managers, executives, professionals and employees are often given the choice: sign or be fired.

While companies claim all kinds of reasons why they want a non-compete agreement from their employees, there's only one reason they really want it: to prevent a competitor from luring you over to work for them. They want to do everything they can to inhibit and prevent competition. But they will almost never admit that's the real reason.

Why not? Because preventing competition is the one reason that will never, ever justify a non-compete agreement.

While every state has different laws regarding enforceability of noncompetes, most allow them in some form or other. I'll use Florida's as an example, since I'm most familiar with it.

Florida law says:

542.18 Restraint of trade or commerce.—Every contract, combination, or conspiracy in restraint of trade or commerce in this state is unlawful.

 This law is similar to the Federal equivalent, the Sherman Antitrust Act, which makes all contracts, combinations, and conspiracies that unreasonably restrain interstate and foreign trade illegal. There are both civil and criminal penalties for violations of the Sherman Act and the Florida antitrust law.

The Florida noncompete statute is a very specific exception to the antitrust laws. It says, in part:

542.335 Valid restraints of trade or commerce.—

(1) Notwithstanding s. 542.18 and subsection (2), enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of business, is not prohibited. In any action concerning enforcement of a restrictive covenant:

 

(a) A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.

 

(b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.

 
The statute sets out some things the legislature considers legitimate interests, such as trade secrets, substantial relationships with customers and client goodwill. But preventing competition is not a legitimate interest to protect.

If your employer doesn't have a truly legitimate interest to protect, then they are violating antitrust laws by enforcing or trying to enforce a non-competition agreement. Unless you're the holder of the company's secret recipe, you might want to talk to an employment lawyer in your state about defenses you have to your noncompete obligations before you decide you have no choice but to step out of your industry for a year or two.

Loss Prevention Is Lying To You

So you're called into the back room. It's a tiny one with no windows and only one door. In the room is someone who identifies himself as being from Loss Prevention. He seems so nice. He tells you he's there to help you save your job. If you only tell him what he wants to hear, you can go back to work.

He's lying! Don't fall for it. Everything you say can and will be held against you. Be careful.

He asks you some questions that make it clear you're being accused of doing something wrong. Maybe it's stealing from the company. Maybe just punching in wrong. Maybe a violation of some policy. He says he's trying to help you, so you tell him everything. Yes, you did use a plastic spoon from the deli and didn't pay for it. Yes, your boss gave you a candy bar and said it was going to be destroyed anyhow, so you took it and ate it. Yes, you used your employee discount to buy something for your best friend. Yes, you forgot to punch in, so you went in and wrote down your best estimate of the time you came in.

That wasn't very careful, was it? You've just confessed to doing something wrong. Maybe even a crime. But he's so nice. He tells you the only way you can save your job is to write down everything he tells you to write.

He's really lying now. Say no! Tell him that you will be glad to write your own statement in your own words, and tell him you'll provide it to him the next day. If he says you need to write what he says or be fired, you're already gone. Don't believe him for one teeny, tiny second.

He tells you to write down what you did, only the way he puts it sure makes it sound worse than it was. He conveniently leaves out how your boss told you to do it or said it was okay. He leaves out how others of, say a different race or sex, do it all the time and suffer no consequences. He has you write down that you understand you violated company policy. Then he tells you to sign it.

Tell him to pound sand. Do not do this. If you do it, you're fired, and possibly arrested.

Let's say you believe this guy and write it all down. What's going to happen next? He grabs it, maybe leaves the room for a couple minutes, then tells you that you're fired. You're escorted out like a criminal.

If you are called into a meeting with Loss Prevention, that's a meeting where you need to be very aware that you are being accused of doing something wrong and you're probably being fired. They are not your friend. When in doubt, tell them you want to leave and speak to an attorney. Yes, they can fire you for leaving, but that's way better than admitting to something you didn't do, or admitting to a crime. You can always write up your response to the accusations calmly after you've had a chance to think straight later and send them to HR.

Stand Up For Yourself Without Getting Fired

I thought I'd share with you today an interview I did with TJ Walker, who is an excellent media trainer with a regular internet TV show. We talk about my book, employment contracts, noncompete agreements and how you can negotiate a better severance package with your employer.

Ta da! My first video embed. I'm very excited that this worked. Maybe I'll actually figure out one of these days how to embed some videos I did where I actually appear on the video. . .

Employees: Tell Your Representatives To Vote No On These Terrible Laws

Remember last year's viral campaign ad? The one that said, "Wake the f*#k up?" America woke up, sort of, and then went right back to sleep. So I'm telling everyone who is an employee, and everyone who depends on an employee for their food, clothing and shelter, to wake back up.

Workers are under attack in a major way right now. There are terrible laws pending that will gut the few protections employees have in America. Need I say which party is proposing them? Probably not. Here are some laws that you should tell your legislators to vote no on. Tell them today. I'm serious.

Anti-overtime law: It sounds so sweet. So appealing. Don't be fooled. It's a trick. The Working Families Flexibility Act is as anti-working-family as you can get.  The folks trying to push this one say that it will allow employees to "voluntarily" choose to take a comp day instead of being paid time and a half for overtime. These are the same folks that say forcing employees to sign arbitration agreements and jury trial waivers in consideration of continued employment constitutes "voluntary" agreement. Employers will shove "Voluntary Comp Time Agreements" in front of all new employees faster than you can say, "in the pocket of corporate lobbyists." If you want to give up all your overtime, then stay asleep. Otherwise, wake up!

Anti-prevailing wage laws: In Florida, Nevada, Tennessee, Michigan and Missouri, bills are pending that would gut prevailing wage laws. These are laws that require government contractors to pay a higher wage than the state or federal minimum wage in areas with higher costs of living. The bill in Florida would result in a 40% pay cut for some workers. Can you afford a 40% pay cut. No? Then wake up!

Right to work laws: This sounds like justice personified. Everyone should have the right to work, right? Wrong. It's one of those  Orwellian names that means the opposite of what it says. It doesn't change the at-will doctrine that exists in 49 states, saying you can be fired for any reason, including your boss's bad mood. Instead, it is intended to gut the unions. Legislation is pending in Congress and in many states. It's bad stuff. Read my article on this topic here.

Anti-paid sick leave: Efforts to deny local governments the right to pass ordinances requiring paid sick leave have popped up all over. A corporate lobbying group is behind it. Watch for these laws in your state, and call and write your legislators to vote no if your state is being targeted.

Pro wage-theft: I wrote a couple weeks ago about the efforts to legalize wage theft in Florida. Here's my post on this.

How idiotic are these laws? Well, they certainly aren't pro-family, are they? I wonder who will buy all the products and visit the travel destinations of the corporations who support anti-employee laws once American employees are bankrupted. I fear we may find out soon enough if we don't stand up and fight while we can.

These are just a few of the many anti-worker laws that have proliferated this year so far. I bet you can think of some more. If you hear of legislation that is pending in your state or in Congress that Americans need to wake up over, let me know in the comments section and I'll be glad to do my part to spread the word.

The NFL Wants You (Unless You're Gay)

Here's a new post by my associate, Ryan Price. I think he's spot on with this important issue. If the military survived gays in the barracks, the NFL will survive gays in the locker room.

By:  Ryan Price

Are you ready for some football?!?!  The management of several National Football League (NFL) teams hope you are, unless of course you are homosexual.   In a not so shocking news story, several NFL teams questioned draft prospects about their sexual orientation at the annual scouting combine.  This story came not long after the Manti Te’o scandal, where the star Notre Dame player’s sexual orientation came into question after it was reported he was romantically involved with a fictitious girlfriend portrayed by a male. Now, Te’o’s draft status is in question because teams are afraid of what they may have to “deal with” down the road if news comes out that Te’o is indeed gay.  Why should this ever matter in any employment setting? At least in the NFL, Mike Florio of NBC sports says, “We have to step aside from the rest of reality and walk into the unique industry that is the NFL . . . .  Teams want to know whether Manti Te'o is gay. They just want to know. They want to know because in an NFL locker room, it's a different world. It shouldn't be that way." Is it really a different world? Is it really unique? Are there not homophobic and prejudiced people in many work environments?

Earlier this year backup San Francisco 49ers cornerback Chris Culliver stated he would not welcome a gay teammate in his locker room. What would he do? Quit his high paying job as a backup? I don’t think so. In fact, unbeknownst to Culliver, he did play with a gay teammate. His teammate was outed not long after the Culliver controversy following a domestic dispute with his boyfriend. Of course there are gay players in the NFL and all other major American sports. However, most do not come out while they play, but that may be changing soon. The fact of the matter is, whether or not someone is a homosexual does not affect their job performance, unless perhaps they are faced with a hostile work environment. Hostile work environments begin and end with upper management. 

When management questions prospective employees on their sexual orientation, they are creating or endorsing such hostile environments. Most people, including Culliver, would not quit their job because their co-worker is gay.  However, employers will lose quality employees if they endorse such hostile work environments.  

The NFL released a statement following reports that teams were questioning draft prospects about their sexual orientation.  They simply stated, “teams are expected to follow applicable federal, state and local employment laws." Further, "It is league policy to neither consider nor inquire about sexual orientation in the hiring process. In addition, there are specific protections in our collective bargaining agreement with the players that prohibit discrimination against any player, including on the basis of sexual orientation." The league vowed that it would “look into the report [about the] scouting combine. Any team or employee that inquires about impermissible subjects or makes an employment decision based on such factors is subject to league discipline."

NFL Players Association executive director DeMaurice Smith commented, "I know that the NFL agrees that these types of questions violate the law, our CBA and player rights.”  However, to date, there have been no reports that the league has done anything about these “illegal” hiring practices. Perhaps that is because such interviewing questions are not illegal at all and these statements were simply released for PR purposes.

Are there any protections for employees or potential employees who are questioned about their sexual orientation during the hiring process or after they are hired? Unfortunately, the answer is usually no. There isn’t any federal law protecting employees against sexual orientation discrimination. In our country, it is mostly legal to discriminate and harass on the basis of sexual orientation. (Note: EEOC says that discrimination based on gender identity is illegal sex discrimination, but it remains to be seen whether the courts will see it that way.)

The tide is slowly changing.  More and more states, counties, and municipalities are passing laws against these heinous practices. Sexual orientation is irrelevant in the determination of a person’s qualifications for a job. In addition, these companies are sabotaging their own competitive position by filtering out homosexuals. By discriminating against employees based on their sexual orientation, companies are losing out on quality employees and also hurting their brand and image. Companies should hire the best of the best, not the best of the straight.

If you feel you have been discriminated against or harassed based on your sexual orientation you should check your state and local laws to find out what protections and redress you may have. Make sure to save copies of all applications and take notes following your interviews where you believe inappropriate questions were asked.  When in doubt, contact your local employee-side employment law attorney.