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, July 29, 2011

Can They Really Say That? What Employers Can Say About You When Giving References

           Readers on the Ask A Manager blog asked me quite a few good questions when I volunteered to write a guest post. While we had to select one, I wanted to follow up and answer this great question that I also hear from employees a lot, so I'll answer from both the employee and employer perspective:

References, for an employer to read. So many companies spill nothing except names and numbers. While it’s legal to say anything that reflects an honest assessment of that ee’s work, they won’t for fear of the almighty lawsuit. A refreshing amount of candor from an employment attorney on how many ees actually sue over this issue would be greatly appreciated. Also, some insight on what you can say that will never get you in hot water, or what will get you sued over if you DON’T tell someone.
           The truth is that employers can give any truthful information they want about your performance. Defamation is where your employer or former employer makes a false statement of fact about you to someone other than you that damages your reputation.
Some states have statutes protecting employers who give job references to some extent, but even then the employer generally can’t give out knowingly false information. A statement that you were an embezzler, ponzi schemer, or pedophile, made when the person giving the reference knew it was false, will probably not be protected.
A few states actually require employers to provide a letter of reference up on request. What has to be in that letter varies from state to state, but it usually includes job title, dates of employment, salary and/or reason for leaving or termination.
            Qualified privilege: Employers have a qualified privilege, that is, one that can be overcome, to conduct an investigation of employee wrongdoing. For instance, if someone complains of age discrimination, the employer’s human resources person, attorney, and the named witnesses can speak about the investigation and will probably be protected. There are some ways to overcome a qualified privilege, so you’ll want to talk to an attorney even if you think the statement was privileged. The problem for employers comes after they conclude that the employee committed wrongdoing. While they may have a privilege to investigate internally, an employer may have liability if the accusation spreads outside the company to potential employers.
            Publication: In order to sue for defamation, the information must have been “published” to a third party, which only means that it had to be said to someone other than you. If it gets to a potential employer, it was “published” to a third party. Some states consider statements made inside the company not to have been published to a third person. A statement to you about you will never be defamation unless others were present to hear it.
            Absolute privilege: Some communications can never be the subject of a defamation case no matter how knowingly false. These may include statements made in a legal proceeding, statements made to police, to administrative agencies, and by government officials in the scope of their employment. I say “may” because this can vary by state and can be fact-specific. While your employer may be able to say certain things about your performance or alleged misconduct to unemployment, they may not be able to say the same things to potential employers without having some liability.
            Opinion: Statements of opinion are not defamation. If the employer simply says that the employee was a poor performer, the statements may well be of opinion, not fact (but if the performance review says the opposite, it may cross over into fact rather than opinion). Statements like, “In my opinion, she was a pedophile,” will not get around the law of defamation.
            Truth: Truth is always a defense in a defamation claim. If you stole from the company and your supervisor tells a potential employer that you were fired for stealing, they will probably win a defamation suit. However, the employer will have the burden of proving the truth of the statement, which can be tough. While they may have suspected you, they frequently don’t have enough evidence to convince a jury.
            Liability to other employers: An employer who gives false information to a potential employer can be liable if they are damaged by the misinformation. That means telling a potential employer that your thieving employee is honest just to get rid of them will bite you when the employee embezzles from them. If they find out you lied and knew of the employee’s propensity to steal, you could be sued.
            Neutral references: This is why many employers have neutral reference policies, where they only give out dates of employment and job title. This is obviously safe information to give. I would caution employers who have neutral reference policies to apply them evenly. If you give positive or negative references to some employees, you could get socked with a discrimination claim.
            Reference checking companies: There are professional reference checking companies that pretend to be potential employers and then tell the employee what’s being said about them. Their reports can usually be used as evidence in a defamation case. I’ve also seen employers who were given awful references tell employees what was said and offer to testify. Never assume what you’re saying about a potential employee won’t end up in court.
            Agree what will be said: When I negotiate severance agreements, we usually agree what can be said about the employee. Sometimes it’s neutral, sometimes the employer prepares a letter and agrees to give the information from the letter and nothing else. That’s probably a good policy even without an agreement. When an employee is leaving, why not write down exactly what you plan to say in a letter and give it to them? That way they don’t have to worry about what you might say, and you don’t have to worry about getting sued. Just don’t pull a fast one or be cute, like the employer who said, “I need to check the agreement to find out what I’m allowed to say.” No, no, no. That person already said something they weren’t allowed to say. They deserved to be sued for breach of contract.

Donna’s tips:
a.       Employees can defame former employers too, so be careful. Corporations can be defamed just the same as individuals. If you have a blog, website, or make statements disparaging the company or their products, you should be careful to get your facts right.
b.      Defamation claims against employers can be tough. Many judges just don’t like them. If you sue, you could have an uphill battle. However, that doesn’t mean employers shouldn’t worry. An employee who sues is likely not paying by the hour, but employers defending themselves will end up paying someone’s hourly rate. The cost of defense can be in the tens, or even hundreds, of thousands of dollars, depending on the case.
c.        Sometimes a cease and desist letter will accomplish more than a lawsuit. Getting the defamer to stop the statements might be more valuable to you because you can move on and get another job. An employer who gets a cease and desist letter from an employee’s attorney should take it seriously. They already have a lawyer. Assume they mean business and will sue if it continues.
d.      If you are thinking about filing a defamation claim against an individual, be careful and make sure the person has assets that will make them collectible. Broke defendants can be frustrating when you try to collect.

Tuesday, July 26, 2011

4 Times When You Should Complain About Your Boss

I usually recommend against complaining about your boss. It can be satisfying to complain, but complaining can get you fired. There's no First Amendment in the private workplace, and even government employees' free speech rights are limited. If you say your boss is incompetent or unprofessional, you aren't protected from retaliation.

Still, sometimes you really do have to report your boss to Human Resources or someone in management. Here are four times where you're legally protected from retaliation if you complain (no, I can't guarantee they won't retaliate anyhow, but you have some legal remedies if they do).

Read more on AOL Jobs . . .

Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!

Friday, July 22, 2011

Tortious Interference: Ammunition Against Workplace Bullies and Harassers?

            A new case in Florida is part of a growing trend where employees strike back against coworkers who bully or harass them at work. In Alexis v. Ventura, out of Florida’s 3d DCA, the court said it was error to dismiss a tortious interference claim against a supervisor.

            She alleged that her boss created a hostile environment motivated by a discriminatory intent against her. The court set out the elements of a tortious interference claim:

To state a claim for unlawful interference with an advantageous business
relationship, Alexis must allege the following elements:

1. The existence of a relationship between Alexis and her employer, under
which Alexis has legal rights;

2. Ventura’s knowledge of the relationship;

3. An intentional and unjustified interference with that relationship;

4. By a third party;

5. Resulting in damages to Alexis caused by the interference.

Sloan v. Sax, 505 So. 2d 526 (Fla. 3d DCA 1987).

The question on appeal was whether the supervisor was a “third party” for purposes of her claim. Normally, a supervisory or managerial employee is considered to be a party to the employment relationship. However, the court said:

There is a recognized exception to this general rule, as explained in O.E. Smith’s Sons, Inc., v. George, 545 So. 2d 298 (Fla. 1st DCA 1989):

For the interference to be unjustified, the defendant must be a third party, external to the business relationship. However, the privileged interference enjoyed by a party that is integral to the business relationship is not absolute. The privilege is divested when the defendant “acts solely with ulterior purposes and the advice is not in the principal’s best interest.”

Id. at 299 (quoting Sloan v. Sax, 505 So. 2d 526, 528 (Fla. 3d DCA 1987)).

            I thought this was an interesting case because it could provide extra ammunition to an employee who is a harassment or even a bullying victim. The problem with suing individuals, of course, is that they rarely are wealthy enough to pay off judgments of any amount. Still, where bullying and general harassment are legal, this type of suit might enable victimized employees to strike back.

            I checked it out and it looks like tortious interference claims have been allowed in some states but not others. Some states that seem to be allowing these claims (I’m sure my colleagues in these states will tell me if I’m wrong) include Massachussetts, Texas, Missouri and New York. In addition to the problems with suing the individuals, your company is always going to be a “party” to your employment relationship, so you won’t be able to tag your employer with this type of claim.

            Another downside I see to these claims is you have to claim the coworker or supervisor was acting outside the scope of their employment, which might mean a free pass from the employer if you’re also suing them. But if the company points to the individual and says they were working outside the scope of their employment, it might be wise to bring in the individual and let the jury decide which one is to blame.

            I’m always looking for ways to go after bullies, so this looks like a promising claim if it’s allowed in your state.

Wednesday, July 20, 2011

Employment Law Blog Carnival Arrives!

The Employment Law Blog Carnival is a collection of great information from employment lawyers around the country (including me). You can check out this month's edition here. Check it out and get informed about your rights.

Tuesday, July 19, 2011

Salaried Workers, Do You Get Overtime Pay? Odds Are You Should!

Just because you're salaried doesn't mean you're automatically exempt from overtime. Most employees are entitled to be paid overtime (1.5 times your regular hourly rate) under the Fair Labor Standards Act for any hours worked over 40 per week. Some employees are exempt, but not nearly as many as most employers and employees assume.

If your employer is treating you as exempt from overtime, odds are they got it wrong. Here are some ways you might be exempt from overtime.

Read more on AOL Jobs.

Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!

Friday, July 15, 2011

Fire An Employee Because of a Child Support (or Other) Garnishment? Go Directly to Jail

            Every once in awhile someone comes to me having been fired right after a court issues a garnishment order against them for child support (or another debt). This is a violation of both federal and many state’s laws.

            Consumer Credit Protection Act: This law limits the amounts that can be garnished and sets out the procedures for garnishing wages for any debt. Many employers think this is a pain in the neck, so they forget that the law also prohibits employers for firing an employee if they’re garnished for a single debt. If you get a second garnishment, the law doesn’t protect you, so try to avoid multiple garnishments if you can.

            Penalties: If your employer fires you after one garnishment, you can get a court order requiring them to reinstate your job, plus back pay. The Department of Labor can sue for you. Employers who willfully violate the law against retaliation can be prosecuted criminally and fined up to $1,000, or imprisoned for not more than one year, or both.

            State laws: If the states provide for a lesser amount to be garnished, or provide protection for garnishment of more than one debt, the state laws apply. That means employers need to be aware of the protections their state applies to employees. Some states provide protections against discharge for a child support garnishment, regardless of whether or not there were prior garnishments for other debts. Here’s a list of some state laws’ limits on the amount that can be garnished, with phone numbers for agencies so you can check about the anti-retaliation provisions.

            Yes, dealing with an employee’s wage garnishment is a pain. But if you fire them just because you don’t like being inconvenienced, you can end up going to jail over it (and still have them back as an employee). If you were fired right after a garnishment, contact a lawyer in your state to find out about your rights.

Monday, July 11, 2011

Top 9 Things You Need to Know About Your Employee Benefits

I sometimes have people tell me they started their new job and then found out there was no health insurance. They express shock -- but they have to give me insurance, don't they?

No, they don't. There is no law requiring any employer to provide any particular benefits to employees. There are some tax incentives for employers to provide benefits like health insurance and 401(k) plans, which is why so many do (that, and the executives want them). Also, some large businesses have to pay an assessment if they don't provide health insurance for employees.

You should always ask about benefits before you accept a new job. The time to negotiate is before you accept, not after you start.

Even though employers don't have to provide benefits, once they do, the benefits are regulated by law. Here are some things you need to know about benefits you might get in your new job, what happens to your benefits when you leave, and the federal laws that govern benefits.

Read more on AOL Jobs.

Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!

Friday, July 8, 2011

Everything Employees Need To Know About Filing With EEOC

EEOC is the United States Equal Employment Opportunity Commission. If you have been the victim of discrimination, this is likely the first step you’ll have to make before filing a lawsuit for discrimination. They’re at http://www.eeoc.gov.
Deadlines: If you work for anyone but the federal government, you have to file a charge of discrimination (this is not a lawsuit) within 180 days from the date of discrimination, except where the state has its own agency that takes discrimination charges. Then the deadline is 300 days. Federal employees have 45 days to see their designated EEO counselor.
            Filing your charge: If you’re represented, your attorney can file the charge for them and you don’t have to wait hours to meet with an investigator and go through the intake process, which can also take an hour or more. EEOC is also doing some intakes by phone and online, so check with your local office.
            Mediation: The EEOC will then either decide to ask the parties if they want to mediate to try to resolve it, or send it straight to the investigator. If they ask you if you want to mediate, you should say yes.
            Investigation: The investigator will send out a standard list of questions to the employer, along with the charge. The employer will answer in what is called a “Position Statement.”  You will then not be given a copy of the position statement, but you still have to respond to it. Some investigators will call your lawyer or you, give a quick summary of a 50 page position statement on the phone, expect the attorney or you to take notes, and then will give 10 days to respond. A nice investigator will agree to summarize the position statement in a letter, and then give 10 days to respond.
            Results: EEOC is, most likely, going to issue a “Notice of Dismissal and Right to Sue.”  This doesn’t mean you don’t have a case. It means EEOC was unable to determine whether or not you have cause for your charge because the evidence is disputed.
The other possibility is a “cause” finding. All you’ll likely get out of this, besides a moral victory, is “conciliation,”  an attempt to get the parties to settle. The other thing you get with a “cause” finding gets is a review by the EEOC’s attorneys. EEOC can bring a lawsuit on behalf of the employee. This almost never happens, so don’t count on it.

Donna’s tips:
a.       You may run into an investigator that will tell you that you don’t have a case. It’s still your right to file there and they have to take the charge if you insist. But they’re right if you’re trying to file for anything other than race, age, sex, national origin, genetic information, disability, religious, color, pregnancy discrimination or retaliation for having objected to one of these.
b.      The EEOC’s mediation program is quite excellent, so I always say yes to it. Many employers and charging parties decline, which is a missed opportunity. If there’s a lawsuit, they have to mediate anyhow, and this is free.
c.       The employer will be given almost infinite extensions in which to respond to your charge, which can cause the EEOC process to drag on about a year (lately, at least in my area, it’s taking around 2 years). You will not be given much more than a one week extension. Whether or not your lawyer or you are hospitalized, dying, on vacation, or kidnapped, the EEOC hates to give charging parties much of an extension to respond to a position statement. The most that is usually granted is 7 – 10 days.

Wednesday, July 6, 2011

10 Things You Need to Know Before You Demand Your Work Break

Almost everyone I talk to about this issue is absolutely sure they're entitled to two 15 minute work breaks and one lunch break a day. Almost everyone is wrong. Before you smart off to your boss who's demanding you return to work before you finish your coffee, here are 10 things you need to know about work breaks.

1. No work breaks required by federal law

No federal law requires any work breaks for meals or rest. Need a bathroom break? Not federally required. Can't hold it? Complain to your member of Congress.

2. Meal breaks
Only twenty states . . . read more on AOL Jobs.

Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!