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, February 12, 2016

Grow Up! Florida Legislators Need To Get Over Potty Issues

Potty issues are apparently a big political concern here in Florida.

When I first moved to Florida from the liberal Northeast, I became involved in the campaign to pass the Equal Rights Amendment. I thought it was a no-brainer. But while phone banking I encountered numerous people arguing with a straight face that passing the ERA would mean unisex bathrooms. I was astounded. Well, now we have plenty of unisex bathrooms in this country and the world didn't end.

Yet Florida legislators haven't gotten over their potty issues. Last year, a bill that would have made it a crime to use a bathroom marked for the opposite sex passed one committee before dying a well-deserved death in another. The bill was so poorly written that it would have been a crime to change a male baby's diaper in a women's restroom. All for the purpose of harassing the transgendered.

Just when I thought the worst of the potty issues had come and gone, this happened: a bill to make LGBT discrimination illegal in Florida failed because Florida legislators fear they'll pick up gay cooties in the potty. Well, okay, they didn't actually say cooties. But, in the words of one Republican lawmaker, “you could have a lot of weirdos doing weird things in bathrooms.” These legislators claim they fear that men could dress up as women and really be sexual predators out to attack women in bathroom stalls. Alrighty then.

Here's the thing. Sexual predators could do that very thing right now. There's nothing to stop them other than that it's already illegal to sexually assault people, whether in restrooms or elsewhere. And there has not been a single reported instance of any attack by a transgender person against a person of the opposite sex in any restroom in any state where LGBT anti-discrimination laws have passed. Not one. Zero. Zip.

I'm way more concerned for the transgender man who identifies as a woman and the post-op transgender woman who dress as females yet have to use the men's room. Not only are they being forced to put themselves at risk of physical or mental abuse, but isn't that more disturbing to men and women than just letting people use the potty they feel comfortable using?

The argument, in short, is specious. Which brings me back to cooties. Because that's the only explanation I can come up with for this silly argument. Yet we are continuing to allow legalized discrimination against gay workers in Florida all because Florida legislators haven't gotten over their potty issues.

So I say to Florida legislators, grow up! Get over your potty issues and pass a law that most of Florida's major corporations support and that will actually benefit voters in our state.

Friday, February 5, 2016

My Predictions for 2016

OK, so I waited a bit, and a month of 2016 has already passed. Still, I promised that I'd give you my predictions for the year, so here they are:

Political firings: Since it's an election year, we'll hear about people being fired for discussing politics at work, for supporting the wrong candidate, and for being involved in certain campaigns. We'll also hear some threats from CEOs and other corporate types that if their employees vote for certain candidates (read: not Republicans) they'll be fired. Is that illegal? Depends on the state. In some cases, it depends on the city or county. Should be an interesting and litigious campaign season.

LGBT discrimination: Some states and localities will pass laws against LGBT discrimination, but my home state of Florida will fail again.

Obama to the rescue: The President will continue to be active with his pen. He'll try to squeeze in some more pro-employee executive orders before he goes to the big speaking circuit.

Clear choice: The candidates for President will make their positions on working people very clear. You will need to vote very carefully. You could easily lose many workplace rights if you vote wrong.

EEOC steps up: EEOC will step up its activities in one final burst before the new President gets a chance to gut it (or not gut it - see above about voting well).

NLRB steps up: NLRB will also try to help working people as much as it can while it still can. Employers will complain bitterly.

Do-nothing Congress: Congress will do zip to help working people. They're too busy campaigning and fighting among themselves. They will try some anti-employee crap. The President will veto it.

Criminalization: We'll see more employees arrested and prosecuted for things like trade secrets violations, whereas employers who steal wages will walk.

Joint employer: Whether franchises and placement agencies are joint employers with parent companies and the companies employees are placed with will be a hot issue this year. Federal agencies say yes. Some courts will say no. The Supremes won't decide this year, so more litigation will ensue.

Guns at work redux: We have many states with take-your-guns-to-work laws that protect employees from being fired as long as they have guns in lock boxes in their vehicles. Now employees and the NRA are going to push to allow employees with concealed weapons permits to carry into the workplace. Next, if they succeed, they'll push open carry in the workplace. Will employers wake up and rise up against the NRA? Not likely this year because they're supporting the same candidates. Be careful what you wish for, employers.

There will be lots more going on than all this because the elections usually cause some havoc. But here you have my predictions for the year. Vote well, so I can have some good predictions in 2017.

Monday, December 21, 2015

Call Me Karnak: How I Did On My Predictions For 2015

It's time to see how I did on my predictions for 2015. I have to say, I did pretty well. See for yourself. Here's what I predicted, and what really happened:

1. Intern sexual harassment: I predicted that Miami-Dade County would follow Broward County's lead and pass an ordinance banning sexual harassment of interns. Boy, was I wrong. Broward's proposed ordinance stalled indefinitely. Miami-Dade did nothing to protect interns. I predicted a bill would be introduced in the Florida legislature, but that Republicans in charge of both houses and the governorship would block it. I was right. On the national front, I correctly predicted we'd see a move afoot in other states to pass a law similar to the ones passed in California, New York, Oregon and Illinois. This year Connecticut and New Jersey passed legal protection for interns and a bill was introduced in Michigan.

2. Micro-unions: I predicted that micro-unions would start popping up more in 2015, but it seems that there wasn't exactly a rush to unionize small groups of employees of bigger employers. Still, there were a few micro-unions that were voted in in 2015. A small group of Volkswagen skilled trade employees were approved to vote on unionizing. Pharmacists at a Target in Brooklyn voted in a micro-union, giving unions a foothold for the first time in the mega-retailer. It wasn't the woe-is-me rush that anti-union folks predicted, but it's a start.

3. Minimum wage: I predicted that 2015 wouldn't be as big a year for increases because it isn't an election year, but that we'd see some more states and local governments raise the minimum wage to over $10/hour. Rhode Island passed an increase to $9.60 an hour, so very close but no cigar. Cities did better by their workers in 2015. Los Angeles and Sacramento raised their minimum wage to $10.50. Mountain View, Santa Clara and Palo Alto, CA and Santa Fe, NM went up to $11.00. Mountain View's rate will gradually reach $15.00 in 2018. Portland, ME went to $10.10.

4. Obama as employee advocate: I predicted that President Obama would continue to use executive orders to push for employee rights, and he certainly did that. I predicted that his push to pass a paid sick leave law would fail and that members of Congress with elephantitis would do everything they could to make sure workers remain oppressed and that certainly happened. For more about what President Obama did with his pen, check out my blog post on it here.

5. Gay marriage: I predicted that we'd continue to see marriage equality expand. Yep. Called that one.

6. Marijuana: I predicted that legalized marijuana and medical marijuana would continue to expand, but not one new state legalized it in 2015. However, Delaware finally restarted its medical marijuana program this year and opened its first dispensary. Illinois also opened up its first dispensary. Some states added certain medical conditions to their approved list of conditions for which marijuana could be prescribed. So there was movement, but not the surge I expected. Several states are trying again next year. I predicted that employees who use marijuana for medical purposes would continue to get fired due to lack of laws protecting them even when they have a prescription, and that definitely happened.

7. Republican roll-back: I predicted that Republicans would try to roll back worker rights. I predicted they'd attack the Fair Labor Standards Act. They did, trying to pass legislation to allow comp time instead of overtime pay. I said they'd attack the NLRB. They did, as they tried to reverse NLRB's ruling on franchises as joint employers and on simplifying union elections. I said they'd try to repeal Obamacare. They did. I said President Obama would veto these efforts. He did.

8. Noncompetes come into question: I predicted we'd start to see some antitrust investigations of the more extreme and abusive noncompete agreements. Michigan legislators took a swing at noncompetes, as did Maryland and Rhode Island legislators, but didn't manage to ban them yet. I said there will be another effort in Massachusetts to ban them, but it will likely fail. So far, there's no ban there, but legislation is still pending. I predicted no states would ban them yet, but that eyes would begin to open on how abusive they can be. I was actually wrong, since Hawaii banned noncompete agreements for many tech workers this year. Senator Franken has introduced legislation to ban noncompetes against low wage workers. A $415 million settlement in a no-poach agreement case should also shake some employers up to the implications of illegally barring employees from working for competitors.

9. Gridlock: I predicted that zero would actually happen on the national level. ENDA, Civil Rights Tax Fairness Act, FAMILY Act, and Arbitration Fairness Act. Nothing happened.

10. Ban the box: I predicted more states and local governments would ban employers from asking about arrests and convictions on applications, and would limit the use of convictions found in background checks to those that are actually relevant to the job sought. Georgia, Hawaii, New York, Ohio, Oregon, Vermont and Virginia brought the total to 19 states and over 100 municipalities that have passed some form of ban-the-box legislation, policy or executive order. President Obama has also banned the box for federal employers.

Overall, I think I did pretty well in predicting 2015. Next, I'll share my predictions for 2016.

Monday, December 14, 2015

How To Go To Your Office Holiday Party And Still Stay Employed

It's that most horrid time of the year: time for office holiday parties. Since some of you are likely going to have to contact someone like me after you get fired for what happened at your office party, I would like to remind you about how to stay employed despite the office festivities.

Here is my warning about the top behaviors that will get you fired at your office holiday party:

1. Drinking: First of all, if you are an alcoholic and can't be sure you won't drink if you attend, then don't go. If your boss is insistent, you can ask for a reasonable accommodation under the Americans With Disabilities Act to be excused from attendance. If you do drink, limit yourself to two drinks tops, then switch to soda. I'm serious here. The number one way to get fired is to drink too much.

2. Dancing: Many people are fired or disciplined for "inappropriate" dancing. What's inappropriate? It's in the eye of the beholder, and the boss, customers, vendors and your coworkers are the beholders. When in doubt, sit it out. Any moves that imitate sexual conduct (grinding, gyrating, rubbing) are dangerous if colleagues are present. If you're dancing with a colleague, then be very careful. You don't need a sexual harassment complaint in the new year.

3. Driving: A DUI can get you fired. If you don't believe me, check out my article 9 Ways A DUI Can Destroy Your Career. If a colleague or friend tells you to hand over your keys, do it. There's always Uber or a taxi. It's way cheaper than defending against a DUI/DWI charge and losing your job.

4. Mistletoe: Kiss your spouse or date under the mistletoe, but not a colleague or, god forbid, your boss. Seriously.

5. Romance: After a few drinks, colleagues start to look pretty attractive. Office romances are dangerous. If you have a one-night-stand or party makeout session with a coworker (or worse, the boss), expect repercussions at work. Sure, many couples meet at work. My parents did. But tread carefully. No means no. If you break up, stay away and don't retaliate. Persistence does not pay in an office relationship. You can get fired for sexual harassment if you pester a coworker for a date. Don't accept the invitation to the colleague's room. If there's a real romance, take it slow and be sure before you take it between the sheets.

6. Pressure: Don't pressure anyone to attend an office party. They may have religious objections to attending. Maybe their disability prevents them from coming, or they have a spouse with a disability. You don't want to get charged with religious or disability harassment.

7. Games: Some offices have party games. The temptation is to be lewd or bawdy. Avoid making sexual innuendos, telling off-color jokes, or making other comments that may be deemed inappropriate or offensive.

8. Singing: If the office loves karaoke, avoid songs with curse words, inappropriate lyrics, or offensive undertones. If you're singing with a colleague, avoid anything overtly sexual. Also avoid any sexual gestures while singing.

If you think I'm the Grinch, think again. It's your boss and HR that are the holiday Grinches. I'm just trying to keep you employed. Ho ho freaking ho.

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.