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, November 23, 2015

Florida Democrats Take Another Swing At Pro-Employee Legislation (That Won't Pass)

Another legislative session coming up, some more pro-employee legislation that will not pass. But here’s what some Florida Democrats (okay, I didn’t check them all, but c’mon, what are the odds that any of the co-sponsors of any pro-employee laws are Republicans?) are trying to pass in 2016 to help Florida employees:

$15 minimum wage: SB 6 and HB 109 would raise Florida’s minimum wage to $15/hour

ERA: SCR 74 and HCR 8001 would ratify the Equal Rights Amendment. Better late than never.

Sexual Orientation: SB 120 and HB 45would add sexual orientation and gender identity to prohibited categories of discrimination in the workplace.

Social Media Privacy: SB 186 would prohibit employers from demanding your social media passwords.

Unemployment and Domestic Violence: SB 188 protects employees who leave or lose jobs due to domestic violence from being disqualified for unemployment benefits.

Paid Sick Leave: SB 294 and HB 205 would require state and local governments with at least 9 employees to provide paid sick leave to employees. Why only government employers? I'm really not sure that's what the sponsors meant to do, but that's what it says employers are.

Paid Family Leave: SB 384 and HB 603 would require employers to provide paid leave similar to FMLA for birth or adoption of a child and care in the first year, but it applies to employees who work at least 20 hours a week, applies to employers with at least 15 employees, and would permit up to 6 weeks of protected leave. Creates a rebuttable presumption that any demotion or discharge taken within 90 days against an employee who takes leave is a violation.

Ban the Box: SB 448 and HB 353 would prohibit employers from asking about criminal history in initial employment applications.

If you support any of these bills, start calling and writing your legislators now. Especially the Republicans. If any of these proposed laws get overwhelming support, they may just have a chance. My prediction: DOA.

Monday, November 16, 2015

Those Anti-Muslim Rants Are Going To Get You Sued

In light of the attacks in Paris and the end of Jihadi John, I'm guessing there will be lots of workplace cooler talk about Muslims and Middle Easterners in the news. Inevitably, someone will go on a rant about Muslims. That person will get you sued unless you shut them down speedy quick.

A recent example is a lawsuit filed after a Muslim employee was taunted by coworkers with cries of, "Allahu Akbar" when he was on the phone and setting his password as, "BinLaden1." The coworkers claim it was all in good fun. Not surprisingly, the Muslim employee was not amused.

So yes, it is sometimes tempting in anger over a big news story to vent frustrations on someone who looks or sounds different. I've met people from the West Indies, India, and even South America who looked to coworkers or customers slightly Middle Eastern and who were subjected to horrid treatment: name calling, offensive cartoons, moving them to the back of the workplace so customers won't see them, pranks. Calling a dark-skinned person a terrorist, asking them if they are going to cut off your head, or blaming them for ISIS is stupid. It's also illegal. So is refusing to hire an applicant who wears a hijab, bowing to customer preferences not to deal with a Muslim employee, and firing an employee when you find out that they don't hold your religious beliefs.

To HR people, I would urge you to shut down any such activities immediately. You may not be popular, but you might just save the company from a lawsuit. You might remind offenders that all Muslims are not any more responsible for the attacks in Paris than all Americans are responsible for the actions of Timothy McVeigh (the Oklahoma City bomber).

To Muslims and Middle Easterners (and people who "look" Muslim) going to work this week, don't despair. Take good notes of any incidents, with dates, locations, and witnesses. Print out any offensive emails or written materials. Then report it, in writing, to HR. Call it, "Formal Complaint Of Religious/National Origin Harassment." Lay out how you have been treated differently than non-Middle Eastern/non-Muslim employees (or Anglos, etc.) and any harassment you encountered due to your national origin and/or religion.

If they won't shut it down, contact EEOC or an employment lawyer in your state. You have the right to work in a place free of religious and national origin-based harassment.

Monday, November 2, 2015

Beware The Trojan Horse Of "Rewards" With Noncompetes

Your boss and HR deliver the great news: the company loves and appreciates you. It wants to reward you. Maybe they're "giving" you a retention bonus, stock, options, or some other reward that sounds like a heap of money for free. But beware. It may be a Trojan Horse. If it sounds too good to be true, it could be really, really bad.

Lately, I'm seeing more and more so-called "rewards" coupled with noncompete agreements. Employees that were free to leave and work for a competitor are being lured into signing an agreement that they won't work for a competitor for a year or two after they leave, or won't solicit or work for clients for a year or two. Some say you can't contact clients at all, which can make Thanksgiving really awkward if your son is one of your customers (don't laugh - an employer actually tried this with someone).

Here are some things to watch out for when you're handed a reward package that requires you to sign a lengthy contract:

What is cause for termination?: Sometimes the company will tell you that this contract means you can only be fired for cause. That they will have to pay you out for months or a year or more if they don't have cause. But does that really protect you? Better look at how it defines "cause."

If you can be fired for "poor performance," who decides what is poor? Do you get written notice and an opportunity to improve? Is it subjective or objective? If it's subjective, you aren't protected much at all.

If "cause" is "violation of company policies," that sounds reasonable, doesn't it? But when is the last time you read those policies? I bet there is a policy saying you can't use the company email for personal use? Do you email your husband to say you're running late or to remind him to pick up the kids? You just broke policy. You can be fired without notice and get zippo.

If you signed a noncompete agreement, you may be bound by it even if you're fired without notice or severance. It's better if you can negotiate "cause" that is real, such as if you're fired for embezzlement, fraud, failing to perform specific duties, conviction of a crime involving dishonesty or other measurable offenses.

What does it say you can't do after you leave?: If it says you can't contact vendors after you leave, then you may not be allowed to shop at, say, Office Depot if they buy their paper from the office superstore. Can you buy a copier or printer when you leave? Maybe not if they do business with Canon or Ricoh. Can you fly on a plane? If they do lots of corporate travel you may have to take a bus for a year or two. Sure, this all sounds ridiculous. But I'll tell you truly that there is no argument too ridiculous that your employer couldn't find some management-side lawyer to make the argument if they wanted to give you a hard time. Try to negotiate reasonable restrictions before you sign. If there are key customers they don't want you to call on, try to have them listed. If you worked in the industry for 20 years before you came to the company, make sure you aren't signing over your right to call on your contacts.

Can you afford not to work in your industry for a year or two?: Let's say it says you can't work for a competitor or a customer for a year or two. That means you're sitting out of the industry with a large gap in your resume. Even if they offer to pay you to sit out that long, unless you're getting ready to retire that gap can hurt you way longer than the noncompete period. Employers don't like to hire the unemployed. The stats on hiring the long-term unemployed are terrible. So while sitting on a beach for a year or two sounds tempting, are you sure you will be employable when you're ready to go back to work? A better clause to negotiate is one saying you won't be bound if you're fired without cause, and negotiate a reasonable definition of cause, and negotiate for a reasonable restriction like 6 months that will allow those contracts you were working on to go stale but not your skills.

Beware the vesting: If it says you'll get $200,000 in stock, but it vests 10% a year, then you could sign, be fired a week later, they could take back the reward, and you may still be bound by the noncompete in some states.

Sometimes, it's best to say no to a reward even if you think the company is well-intentioned. If, when you point out these problems, they won't work to address your concerns, but claim they would never enforce such a provision, maybe that's true and maybe that isn't. Assume it will be enforced before you sign and assume that it can be interpreted in the most ridiculous way possible. The time to negotiate a reward agreement is before you sign. If you say no to it, sometimes you can negotiate for something you'd rather have, like more vacation time, real stock that isn't on a vesting schedule, or a truly non-at-will contract.

If they won't negotiate and get hostile when you refuse to sign, maybe their intentions aren't so good. You could be headed for a reorganization or layoff. That reward may be a Trojan Horse. Beware bosses bearing gifts.

Monday, October 19, 2015

How Discrimination Can Kill You

Pretty much every day I fight employers who don't take discrimination seriously. HR people and management tend to think people who complain about discrimination are poor performing whiners. But discrimination is real, and it really happens in the workplace.

Not only can discrimination cost you money in lost wages and benefits, but now there are some studies saying discrimination can damage your health or even kill you. So, HR and management folks, please take discrimination complaints seriously. If you don't, you might be helping to kill one of your employees. And if you're a victim of discrimination, take action to report it.

Here are just some of the studies showing discrimination can kill you:

Weight discrimination can kill you:  "Weight discrimination was associated with an increase in mortality risk of nearly 60%  . . . This increased risk was not accounted for by common physical and psychological risk factors. . . . In addition to its association with poor health outcomes, weight discrimination may shorten life expectancy." This is pretty strong evidence that weight shaming kills. "These findings suggest the possibility that the stigma associated with being overweight is more harmful than actually being overweight," say the authors of the study.

Age discrimination can kill you: "Perceived discrimination was associated with increased mortality risk in a general population of older adults. The results suggest that subjective experience of interpersonal mistreatment is toxic in old age. This study adds to a growing literature documenting discrimination as an important social determinant of health."

Discrimination can cause cancer: Perceived discrimination may contribute to somatic disease. . . . These findings suggest that perceived experiences of racism are associated with increased incidence of breast cancer among US Black women, particularly younger women.

Discrimination can cause insomnia, smoking and poor eating habits: "After adjustment for age and SES, everyday discrimination was associated with more smoking and a greater percentage of dietary fat in men and women. . . . Everyday and lifetime discrimination were associated with fewer hours of sleep in men and women . . . . Burden of discrimination was associated with more smoking and fewer hours of sleep in women only."

Racism can cause illness over a lifetime: Racism in childhood can cause lower cortisol levels, resulting in insomnia, depression, cardiovascular disease and diabetes.

Bottom line: If you are the victim of discrimination, it may be killing you. Don't just sit there and do nothing. Report it to HR under your company's discrimination policy. Do it in writing because if you don't then they may deny you reported it. Make sure you say what type of discrimination it is: race, age, sex, religion, national origin, disability, or some other protected status. Don't just say you're being bullied or harassed, because then you aren't legally protected against retaliation.

If the company doesn't take you seriously, then contact an employment lawyer or file a charge of discrimination with EEOC. Don't let a bigot shorten your life.

Monday, October 12, 2015

It's Time To Revamp Florida's Unemployment System

In an excellent piece by Marcia Heroux-Pounds of the Sun-Sentinel, the severe deficiencies of Florida's unemployment system are exposed. Bottom line is that our lovely governor and his friends in the legislature have made it almost impossible for people who have lost their jobs to collect unemployment. If they do collect, they are put through hell, and then the government tries to screw them out of their money by demanding it back.

As a taxpayer, I have to ask: why are we allowing our state government to torture people who have lost their jobs? We have a ridiculously low maximum weekly rate of $275, which is barely grocery money for many people with kids. We max out at 14 weeks, when most states give benefits for 26 weeks. We make these folks who have lost their jobs, which is as traumatic as losing a loved one, jump through hoop after hoop for this piddly amount of money. And we're finding more and more ways to justify excluding them from the system by blaming them for their unemployment.

This affects Florida taxpayers directly in the wallet. Unemployment is essentially an insurance policy that employers pay for each employee as part of their payroll. That means every single Florida employee should be protected. By denying these benefits, we end up forcing the unemployed onto food stamps, welfare, and other taxpayer-supported benefits.

I think it's time to turn the tables. We have at-will employment in Florida, like 48 other states (Montana is the only state without at-will employment). That means employers can fire employees because they are in a bad mood, didn't like the employee's shirt, or for no reason at all. While many states have exceptions to the at-will doctrine, like violations of public policy, implied contract, and violating the implied covenant of good faith and fair dealing in an employment relationship, Florida has none of these.

So we, as taxpayers, are footing the bill for employers who make arbitrary employment decisions. Why not make employers who fire employees without just cause pay for their arbitrariness? Why not lift the maximum rate employers can be charged to these arbitrary employers? Why skew the system to punish employees but not employers?

Here are some things we could demand, as voters, to change the system:

Raise the rates: If employers are found to have abused the system by firing an employee without cause, raise their unemployment rate to cover 100% of the unemployment compensation payments being made for that employee, minus any payments they already made into the system for unemployment compensation. Employees who abuse the system have to repay. Why not employers?

Ban scofflaws from hiring: Employees who owe repayments to unemployment are barred from applying again until they have repaid in full. If employers fail to make the payments for their arbitrary firings, ban them from hiring new employees until they are caught up in payments. Why should they be allowed to continue their arbitrary practices without paying the piper?

Mandatory training: Employees who apply for unemployment have to jump through hoop after hoop to get unemployment. Employers who are found to have fired without just cause should have to take mandatory training, which could be done online, on employee management, progressive discipline and what constitutes just cause for firing.

I don't know about you, but I'm sick of my tax dollars supporting employers who have huge turnover due to at-will employment. It's time to make employers pay if they don't treat employees with a reasonable level of fairness.

Monday, October 5, 2015

If You Work For A Federal Contractor, You Have More Rights Than You Thought You Did. Thanks, Obama!

President Obama has been firing up his mighty pen and issuing Executive Orders left and right. Well, left anyhow. Some of those orders may benefit you. If you work for a company that does business with or gets money from the Federal government, you probably have more rights than you thought you did.

Here are some of the lovely, pro-employee executive orders that you should thank President Obama for (and vote well in the next election to preserve, since every Republican candidate vows to reverse every one of these):

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, if you vote wrong 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.

$10.10 minimum wage: Starting January 1, 2016, contractors must pay $10.10/hour as a minimum wage, and $5.85/hour to tipped employees.

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.

Blacklisting for employment/labor law violations: Anyone applying or bidding for a federal contract of $500,000 or more must 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 these laws:

(A) the Fair Labor Standards Act;
(B) the Occupational Safety and Health Act of 1970;
(C) the Migrant and Seasonal Agricultural Worker Protection Act;
(D) the National Labor Relations Act;
(E) 40 U.S.C. chapter 31, subchapter IV, also known as the Davis-Bacon Act;
(F) 41 U.S.C. chapter 67, also known as the Service Contract Act;
(G) Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity);
(H) section 503 of the Rehabilitation Act of 1973;
(I) 38 U.S.C. 3696, 3698, 3699, 4214, 4301-4306, also known as the Vietnam Era Veterans' Readjustment Assistance Act of 1974;
(J) the Family and Medical Leave Act;
(K) title VII of the Civil Rights Act of 1964;
(L) the Americans with Disabilities Act of 1990;
(M) the Age Discrimination in Employment Act of 1967;
(N) Executive Order 13658 of February 12, 2014
(Establishing a Minimum Wage for Contractors); or
(O) equivalent State laws, as defined in guidance issued by the Department of Labor.
Post-award and during the performance of a contract, contractors 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. Punishment for repeat offenders can be up to cancellation or denial of a contract.

No mandatory arbitration: Yes, I know I linked to the same executive order as blacklisting, above. That's because the same order 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.

Overall, these orders mean that President Obama has taken serious action to protect as many employees as he can with his pen, since Congress won't do diddly squat to protect employees in its current configuration. This is solid proof that your vote matters.

Monday, September 28, 2015

Why Your Employer May Not Be Too Small For A Discrimination Claim

Many employees are frustrated to hear that most discrimination and other employment laws don't cover small employers. For Title VII, which covers race, sex, national origin, sexual orientation (at least EEOC thinks it does), color, pregnancy, and religion, and the Americans With Disabilities Act, employers must have at least 15 employees to be covered. For the Age Discrimination in Employment Act, they must have at least 20. For COBRA, it's also 20. Family and Medical Leave Act requires 50 employees with in 75 miles of your work location.

State laws vary, but here in Florida our discrimination law, the Florida Civil Rights Act (which also covers age) covers employers with 15 employees, but some county ordinances like Miami-Dade and Broward cover employers with 5. In California it's five, Texas 15, New York 4. Here's a list of the discrimination laws by state.

But don't despair if your employer is too small to be covered under these laws. The National Labor Relations Board just issued a decision regarding a case against Browning-Ferris Industries that may help. Although NLRB doesn't rule on discrimination cases, this decision was about whether you can count the parent company if you work for a franchise. And this is important, because you may work for, say, a KFC, but your real employer is ABC Company, the tiny company that bought the franchise to your location. So your corporate employer may only have 10 employees. Part of the reason franchises are so popular is that it's a way to escape those pesky employment laws.

But maybe not for long. NLRB said that the parent company may well be liable for the misdeeds of the franchise owner. The test is simple (but complicated, as in all things legal), namely, does the parent company share or co-determine the terms or conditions of your employment? Here's how they explained it:
The Board’s joint-employer doctrine is best understood as always having incorporated the common-law concept of control—as the Supreme Court’s one decision involving the doctrine confirms. In the Greyhound case, as we have seen, the Court framed the issue presented as whether one statutory employer “possessed sufficient control over the work of the employees to qualify as a joint employer with” another statutory employer.64 Thus, the Board properly considers the existence, extent, and object of the putative joint employer’s control, in the context of examining the factors relevant to determining the existence of an employment relationship.
There's actually nothing new in this. That's always been the standard. What is new, and is causing much consternation in management-side circles, is that now NLRB will also consider whether the parent has the ability to control your terms and conditions of employment, even if it doesn't:

Under common-law principles, the right to control is probative of an employment relationship—whether or not that right is exercised. Sections 2(2) and 220(1) of the Restatement (Second) of Agency make this plain, in referring to a master as someone who “controls or has the right to control” another and to a servant as “subject to the [employer’s] control or right to control” (emphasis added). In setting forth the test for distinguishing between employees and independent contractors, Restatement (Second) Section 220(2), considers (among other factors) the “extent of control which, by the agreement, the master may exercise over the details of the work” (emphasis added). The Board’s joint-employer decisions requiring the exercise of control impermissibly ignore this principle.  
Nothing about the joint-employer context suggests that the principle should not apply in cases like this one. Indeed, the Supreme Court’s decision in Greyhound, supra, was entirely consistent with the Restatement (Second) when it described the issue as whether one firm “possessed [not exercised] sufficient control over the work of the employees to qualify as a joint employer.” Where a user employer reserves a contractual right (emphasis added) to set a specific term or condition of employment for a supplier employer’s workers, it retains the ultimate authority to ensure that the term in question is administered in accordance with its preferences. Even where it appears that the user, in practice, has ceded administration of a term to the supplier, the user can still compel the supplier to conform to its expectations. In such a case, a supplier’s apparently independent control over hiring, discipline, and work direction is actually exercised subject to the user’s control. If the supplier does not exercise its discretion in conformance with the user’s requirements, the user may at any time exercise its contractual right and intervene. Where a user has reserved authority, we assume that it has rationally chosen to do so, in its own interest. There is no unfairness, then, in holding that legal consequences may follow from this choice.
Causing additional woe-is-me complaints among management-side lawyers is that the control exercised doesn't need to be direct or immediate. Indirect control is enough.
Just as the common law does not require that control must be exercised in order to establish an employment relationship, neither does it require that control (when it is exercised) must be exercised directly and immediately, and not in a limited and routine manner (as the Board’s current joint-employer standard demands). Comment d (“Control or right to control”) to Section 220(1) of the Restatement (Second) observes that “the control or right to control needed to establish the relation of master and servant may be very attenuated.”  The common law, indeed, recognizes that control may be indirect. For example, the Restatement of Agency (Second) §220, comment l (“Control of the premises”) observes that [i]f the work is done upon the premises of the employer with his machinery by workmen who agree to obey general rules for the regulation of the conduct of employees, the inference is strong that such workmen are the servants of the owner... and illustrates this principle by citing the example of a coal mine owner employing miners who, in turn, supply their own helpers. Both the miners and their helpers are servants of the mine owner. As the illustration demonstrates, the common law’s “subservant” doctrine addresses situations in which one employer’s control is or may be exercised indirectly, where a second employer directly controls the employee.
There are very few franchise parent companies that don't control things like uniforms, time recordkeeping, the specifics of how the work is done (e.g., just how many fries are in a small order, and how long it should take to serve each customer), the equipment used, and even the training. I suspect few parent companies will not be found to be joint employers under this standard. While this case doesn't apply to discrimination and other employment laws outside the National Labor Relations Act, the reasoning is based on common law, which does apply to all these laws. And it will probably be persuasive to other agencies and possibly the courts.

Bottom line: If you work for a franchise, the parent company may be a joint employer, which means you can also count their employees when pursuing discrimination and other employment law claims, and you may have a deep pocket to reach to when suing for violations of these laws. And that's how it should be. The parent companies of franchises have taken a not-me hands off approach to the misdeeds of their franchises all too long. If they are making money off the backs of these employees, they should be responsible for making sure they are treated legally.