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 24, 2012

Is It Time To End Removal To Federal Court?

When I try to explain diversity jurisdiction to my clients, most of their eyes glaze over. I’ll try to do it here without making you yawn. Diversity jurisdiction allows defendants to remove a case filed in state court to federal court if all defendants are from a different state than the plaintiffs. Say Mary Jane from Florida sues her employer, Evil Empire, LLC. They do have offices in Florida where Mary Jane worked, but they are incorporated and have their main offices in Texas. Diversity jurisdiction would allow Evil Empire to remove Mary Jane’s case to federal court even if all her claims were under state law.

Bizarre, right? But it happens all the time. It’s more complicated than what I just described, but that’s it in a nutshell. Diversity lets the employer forum shop and force employee-plaintiffs into a different court. Employers in many states (maybe justifiably) think federal court is a friendlier place for them.

The reasoning behind diversity jurisdiction is that local courts might be biased against non-local defendants. That was possibly true in 1789, when it was created, but is it true now? I’d bet not. I haven’t seen any studies comparing how out-of-state defendants fare in state court as compared to federal court, but with TV, the Internet, Skype, Twitter, and Facebook crashing down barriers, local prejudice has to be dissipating.

The other thing I’ve never gotten is that federal judges are also locals. A federal judge appointed in Iowa is going to be from Iowa. Does that mean we assume state judges are more biased than federal? I’m willing to bet that isn’t true. The state court judges I appear in front of don’t give a hoot where a defendant is from. I’ve never seen it be an issue. And juries in state and federal court are from the same group of people – all local.

I thought diversity jurisdiction was silly when I learned about it in law school (which may partly explain my less-than-stellar grade in Civil Procedure), and think it’s pretty ridiculous now.

So why did Congress just make it easier for defendants to remove cases to federal court? Normally, defendants have a year to remove, but this change lets them remove all the way up to trial under certain circumstances. That means an employee could go through the expense of conducting discovery and getting ready to go to trial, then have to start over in federal court. Good for the defendant with superior financial resources, very bad for the lowly employee.

Rather than allowing the federal courts to be used as a cynical ploy to cost employees more money, why not eliminate diversity removal altogether? If the purposes it served when enacted no longer exist, then let’s do away with it. Plaintiffs should be allowed to choose their forum within reason. If they file in a court that has jurisdiction and that’s the right venue, they should be able to proceed.

Allowing a last-minute removal is a gigantic waste of state and federal judicial labor and resources. It’s also a colossal money-suck of taxpayer dollars. Let’s get rid of diversity removal. If you agree, contact your member of Congress and tell them. I would encourage employee-side groups like NELA and unions to explore this issue.

Think I’m wrong? Tell me why you want your tax dollars spent this way.

Friday, February 17, 2012

My New Book For Employees To Be Released in Fall 2012

I'm pleased to announce that I've signed with Career Press to publish my new book, tentatively titled Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Fired, or Sue the Bastards. It will be released this coming Fall. I'll keep you posted on how to pre-order as soon as I know. The book is geared toward helping employees, independent contractors, executives - anyone who can be fired, from the janitor to the CEO. Here's the pitch:

So, you hate your job and are ready to quit. Your boss is a flaming jerk and you’re ready to tell him off. Layoffs are imminent. You think you’re about to be fired. Maybe you think you have a lawsuit that’s your ticket out of the workplace. You’re being harassed.

You face a crucial career moment. Mistakes will cost you dearly.
Stand Up For Yourself Without Getting Fired provides answers to these vital questions and more:
  • What Does it Mean If I Sign A Paper Saying I’m a Contractor, Not an Employee?
  • Am I Exempt From Overtime?
  • I’m Entitled to Breaks, Right?
  • My Boss Is Creating a Hostile Environment. Can I Sue?
  • I Think I’m About to Be Laid Off. How Do I Prepare?
Whether you’re a recent grad entering the workforce or an almost-retiree; newly employed or laid off after 20 years; gay or married with kids; janitor or CEO . . . buy this book if you want specific and relevant advice to help turn those bad situations around or decide to sue the bastards.

Friday, February 10, 2012

Lactation Is Not Caused By Pregnancy or Childbirth, Says Judge

Employment law is a weird field to practice in. Just because something is obvious doesn’t necessarily mean the courts are going to find that it’s so. A recent case is a prime example of the Twilight Zone that is employment law. The judge in that case ruled, “lactation is not pregnancy, childbirth, or a related medical condition.” Really?

Okay, so when I managed to nurse my two children, the milk that miraculously emerged from my body had nothing to do with having been pregnant or having given birth. Good to know. Better toss all those What to Expect When You’re Expecting books now, because the judge says they’re all wrong. The court didn’t say what they thought did cause lactation. I’m waiting with bated breath for that decision.

Backing up, I guess I’d better tell you what the case was about. A woman went on approved maternity leave. When she was ready to return, she mentioned that she wondered if she could use a back room to pump milk. Suddenly, her boss hemmed and hawed and said they’d filled her job because she’d abandoned her position. I can just see him shuddering. Breast pumping? Eww. Gross.

Long story short, she lost her case for pregnancy discrimination. The law says that discrimination because of pregnancy, childbirth, or a related medical condition is illegal. EEOC was pretty sure that lactation was related to pregnancy or childbirth (probably because of all those pesky books that said so). So they sued on her behalf.

The law, at least in the Southern District of Texas, is that, "Even if the company's claim that she was fired for abandonment is meant to hide the real reason - she wanted to pump breast-milk - lactation is not pregnancy, childbirth, or a related medical condition." Courts in the 4th Circuit, 5th Circuit, 6th Circuit, and Colorado have also declined to find Title VII/Pregnancy Discrimination Act protection for nursing mothers under various circumstances.

Fortunately, this case involved a firing that happened in 2008. Yes, the justice system is ridiculously slow (she didn’t even get to trial in all that time – this was a summary judgment). Things have changed a bit since 2008, thank goodness. Twenty-four states have laws protecting women from breastfeeding discrimination at work. Congress finally woke up in 2010 and passed the Patient Protection and Affordable Care Act which, among other things amended the Fair Labor Standards Act (FLSA) to require employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth each time such employee has need to express milk, and a private place other than a bathroom for her to do so.This new law only applies to employees who are not exempt from overtime.

Exempt employees in 26 states (my own Florida being one) are still apparently in the Twilight Zone where they may be subject to lactation discrimination if the judges in their state think lactation isn't caused by pregnancy or childbirth.

Donna’s tips:

a. If you are on maternity leave and getting ready to return, don’t assume that you can’t be fired for breast pumping.

b. If you are salaried and your employer considers you exempt from overtime, you might not be protected under FLSA. However, many employees are misclassified. If your employer gets this wrong, you might also have overtime claims as well as claims for breastfeeding discrimination.

Friday, February 3, 2012

Nepotism Is Not Illegal

            I probably get at least one inquiry a week from someone absolutely sure that they’ve been a victim of nepotism. The boss is hiring family members or friends. A family member is promoted even though she’s incompetent or inexperienced. Or even worse, they complained about the incompetent family member and were fired.

            The injustice of it all. Surely they can sue!

            Nope. Sorry. There is zero I can do about nepotism. Zip. Nada.

            Playing favorites is not illegal. Hiring relatives is not illegal. Not if you’re in the private sector. Now, if you work for government, every state has some law about conflict of interest or hiring relatives at certain level. You’ll have to check your state and local laws if you work for government and think something illegal is going on.

            But nepotism in the private sector? It’s expected. It’s mostly legal. Here’s what might be illegal in a situation involving nepotism:

            Failure to disclose: Under Sarbanes-Oxley, management has to disclose potential conflicts of interest. So hiring of relatives, while probably legal even for publicly-held companies, can’t be hidden from shareholders. The SEC can be called in to investigate allegations of undisclosed conflicts. If you object to this type of illegal behavior, you might be a protected whistleblower.

            Discrimination: If the favored few are all of the same race, religion, national origin, or other protected category, the company could be engaging in illegal discrimination.

            Sexual harassment: If the boss favors only individuals who have engaged in sexual relations with her, and you’ve turned her down, you might have a sexual harassment claim (although sexual favoritism is mostly legal).

Donna’s tips:

a.       If your boss is the owner’s niece, be nice. I don’t care if she’s incompetent. Deal with it.
b.      Don’t write a long letter complaining about the incompetent friend or relative. It can and will get you fired.
c.       If you think the company has crossed the line into illegal discrimination, or you work for a publicly-held corporation and they are treating it like a family business, you might want to talk to an attorney about potentially blowing the whistle. Just be careful. Most Sarbanes-Oxley whistleblower cases are dismissed. They are difficult to bring and difficult to win.
d.      If you see that only friends and relatives have a future at your company, start looking. Get out on your timetable rather than waiting until you’re forced to leave on their terms.