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, June 29, 2012

Arizona Employers Want to Ask Employees About Sex Lives, Contraceptives

I sometimes comment that Florida is the center of weirdness in the universe, and that point is hard to refute when we house face-eating zombies and giant anacondas. However, Arizona keeps trying to give us a run for our money on the weirdometer. Arizona legislators proposed a bill recently that would allow employers, if they so choose, to require female employees to provide proof that they weren't using contraceptives for purposes of, erm, sex.

That's not quite what actually passed and got signed, but Arizona now has a law that allows employers to refuse to provide insurance coverage for birth control pills that aren't issued for medical reasons.

Rep. Debbie Lesko's version wanted to provide an exemption for any employer who claimed religious beliefs or moral objections to contraceptives. The final version narrowed this exemption to any entity whose articles of incorporation "clearly state that it is a religiously motivated organization and whose religious beliefs are central to the organization's operating principles."

The original version also let employers mandate the employee provide proof to them, but the signed version apparently only allows insurance companies to collect the proof of medical necessity.

I won't even research what Arizona is saying about insurance coverage of Viagra.  If any of my faithful readers know, I'd be curious. I'm willing to bet that men don't have to jump through the same hoops as women. But maybe I'm being overly pessimistic.

I can think of quite a few problems employers who do ask about employee contraceptives might run into. Sex discrimination, sexual stereotyping, privacy issues, HIPAA violations, disability discrimination - the list goes on. It will be interesting to watch what happens with this very weird law.

Friday, June 22, 2012

Strippers Have Rights Too

There have been two recent stories about strippers and discrimination in the news lately.

Sarah Tressler is a journalist who worked her way through journalism school stripping. Her newspaper employer fired her when they found out she was moonlighting as a stripper. She claims gender discrimination. The newspaper says they fired her for failing to disclose it on her application. Her double life was uncovered by a rival paper. It probably didn't help that she was blogging about her exploits.

An Indiana stripper has filed sexual harassment charges against her employer. She alleges severe physical and verbal sexual harassment.

While many sexual harassers (and their employers) seem to think that "she asked for it" is a defense, it's not. Just because a woman takes her clothes off for a living does not mean that she welcomes groping and sexual advances from her employer. Whether she works for Hooters, as a professional sports cheerleader, or as a stripper, women who dress and act sexy for a living can't be sexually harassed. If advances are unwelcome, they are illegal. The employer must create a safe workplace, free from sexual harassment. While being leered at may be part of the job, being groped isn't.

Now, going back to Tressler, I guess it depends on the totality of the facts. If the judge and/or the jury finds that the employer requires disclosure of an employee's full employment history and/or second jobs, and they fire everyone who doesn't disclose, the employer may be able to convince them it had a legitimate reason for the firing. If not, then the question will be whether men have had similar jobs and weren't fired.

For instance, if they say it's her blog they don't like, then if other male bloggers haven't been fired, it could be sex discrimination. If men have worked as waiters wearing skimpy outfits, as dancers for bachelorette parties, or posing for pinup calendars and weren't fired, then the newspaper will have a hard time proving she wasn't singled out due to her gender.

Strippers and other women (and men) who have jobs that require little or no clothing still have rights. Those rights include the right not to be discriminated against and the right not to be sexually harassed. There is no stripper exemption to Title VII.

Friday, June 15, 2012

Transgendered Employees Are Protected Against Discrimination

The EEOC, in a landmark decision, has declared that Title VII protects transgendered employees under its prohibition against sex discrimination. This ruling isn't too surprising considering that gender stereotyping has long been considered sex discrimination. Here's what EEOC said:
That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute’s protections sweep far broader than that, in part because the term “gender” encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity. 
EEOC went on to say that sexual stereotyping isn't the only way that transgendered discrimination can be illegal:
Although most courts have found protection for transgender people under Title VII under a theory of gender stereotyping, evidence of gender stereotyping is simply one means of proving sex discrimination. Title VII prohibits discrimination based on sex whether motivated by hostility,11 by a desire to protect people of a certain gender,12 by assumptions that disadvantage men,13 by gender stereotypes,14 or by the desire to accommodate other people’s prejudices or discomfort.15 While evidence that an employer has acted based on stereotypes about how men or women should act is certainly one means of demonstrating disparate treatment based on sex, “sex stereotyping” is not itself an independent cause of action.
EEOC went on to give examples of how a transgendered individual might prove sex discrimination:
For example, Complainant could establish a case of sex discrimination under a theory of gender stereotyping by showing that she did not get the job as an NIBIN ballistics technician at Walnut Creek because the employer believed that biological men should consistently present as men and wear male clothing. Alternatively, if Complainant can prove that the reason that she did not get the job at Walnut Creek is that the Director was willing to hire her when he thought she was a man, but was not willing to hire her once he found out that she was now a woman—she will have proven that the Director discriminated on the basis of sex. Under this theory, there would actually be no need, for purposes of establishing coverage under Title VII, for Complainant to compile any evidence that the Director was engaging in gender stereotyping.
Here's the part I found the most interesting, and I thought the analysis was spot-on. EEOC compared discrimination against transgendered employees to religious discrimination against a convert:
Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only ‘converts.’ That would be a clear case of discrimination ‘because of religion.’ No court would take seriously the notion that ‘converts’ are not covered by the statute. Discrimination “because of religion” easily encompasses discrimination because of a change of religion.
Applying Title VII in this manner does not create a new “class” of people covered under Title VII—for example, the “class” of people who have converted from Islam to Christianity or from Christianity to Judaism. Rather, it would simply be the result of applying the plain language of a statute prohibiting discrimination on the basis of religion to practical situations in which such characteristics are unlawfully taken into account.
What does this all mean? How does it affect the rights of transgendered employees? EEOC is not a court and it isn't Congress, so it can't make law. The opinion gives us a glimpse as to how EEOC will view charges of discrimination brought by transgendered employees. That means transgendered employees will have an easier time convincing EEOC to find "cause" for their charges of discrimination. But that doesn't mean they necessarily win.

Once EEOC finds cause (or that they're unable to determine whether or not cause exists), the employee will still have to sue if the employer doesn't settle. That means the courts could decide differently than EEOC. It happens all the time that courts disagree with EEOC's world view.

This decision is a major step in the right direction. The only way to be sure of an outcome will be if Congress decides to clarify Title VII one way or the other, or if the Supreme Court rules on this issue. In the meantime, for now we can assume that transgendered employees have some rights under Title VII.

Friday, June 8, 2012

Can Your Boss Fire You For Taking Vacation?

It’s summer, and thoughts of vacation are in the air. You shouldn’t have to worry about your job while you’re on vacation. Or should you? A recent study shows that 70% of Americans are leaving some or all of their vacation days unused because they are afraid of losing their jobs.

You’ve earned three weeks of vacation, and wow, did you work for it. You put in for your three weeks, got it approved, and planned your trip. You have non-refundable tickets to your dream cruise. A week before you leave, you mention that Jane will be covering for you while you’re gone. Your boss says, “Oh, you were serious about taking vacation?” You nod, meekly. You ask a coworker what she thinks he meant. You find out that the last three people who went on vacation were fired.

The short answer is: yes. There is no law requiring an employer give you any paid vacation. I hear stories all the time of people fired a few days or a week into a scheduled vacation. Even worse, they’re fired the day before they’re scheduled to leave. They were counting on the vacation pay to cover the cost of the trip. Now they’re left in the lurch.

Vacations are good for you and good for employers. They keep morale higher, prevent employee burnout, reduce stress, and keep you healthier. The good news is that most employers won’t fire you for taking your vacation.

Still, the fear of being fired for taking vacation is justified. If you live anywhere but Montana, you’re probably an at-will employee. That means you can be fired for any reason or no reason at all. Do you have any rights? Yes, but not many.

Here are some circumstances where it would be illegal to fire you for taking a vacation: 

Family and Medical Leave: If you have scheduled surgery, are pregnant with a due date, or have an immediate family member who has scheduled medical care, you might be protected. If you put in for FMLA leave, your employer must let you use your paid sick and vacation time first before they put you on unpaid leave. If you’re fired because you used your vacation for FMLA leave, you may be protected. 

Contract: If your employment contract says you’re entitled to vacation, then firing you for taking it might be breach of contract. 

Employee Welfare Plan: If the employer has an established vacation policy for all employees, then it might be an “employee welfare benefit plan” that is covered under ERISA. That means it might be illegal to retaliate against you for exercising your right to take your vacation benefit. 

Union contract: If your union’s collective bargaining agreement provides for your vacation benefits, you might be able to grieve any termination that violates your union contract. 

Discrimination: The company can’t discriminate based on race, age, sex, religion, color, national origin, disability, genetic information, or age in granting and denying vacations. Some states have other protected categories such as sexual orientation, marital status, and domestic violence victims. They can favor your boss’s vacation over yours though. If the boss’s vacation conflicts with yours, even if yours was preapproved, they can renege on the approval. 

State law: Some states provide other protections. When in doubt, talk to a lawyer in your state about your rights.

Other than these limited rights, you can absolutely be fired for taking your vacation or to prevent you from getting a paid vacation. Here’s some more information you need to know about your rights while taking vacation: 

Wrongdoing discovered: If your employer discovers wrongdoing or even poor performance while you’re on vacation, even if you have a protected right to take it, they can fire you for the wrongdoing they discover. That means if you embezzled and they find out because someone covered for you while you were out, or if you didn’t do a key assignment before you left, then you might not have a job to come back to. 

Layoff: Even if you have protected vacation rights, if there is a genuine layoff at your company, they can probably include you in the layoff. 

Pay after termination: If your employer has a “use it or lose it” vacation policy (some states prohibit “use it or lose it” vacation policies), you probably have no right to be paid for your vacation when you’re fired. However, if your employer lets people accrue their benefits and get paid out when they leave, you are probably entitled to be paid your vacation time when you leave. It’s an earned benefit. 

Last minute demand to cancel: Sometimes the boss will demand you cancel your plans at the last minute. Maybe an emergency comes up, or she just decides she can’t live without you. If you refuse and take your vacation anyhow, you can be fired for insubordination or job abandonment.

Should it be legal to fire you for taking your earned vacation? No. But it probably is. The United States is the only industrialized nation that doesn’t have a law requiring paid vacation. One in four Americans receives no paid vacation.

So take that trip to Europe or your dream cruise. Enjoy! You may have more free time than you expected when you get back.

Friday, June 1, 2012

Your Ex-Boss Wants You In Jail

I’ve noticed a disturbing trend recently. Not only are former employers suing ex-minions, but they’re trying to have them tossed in jail. That’s right: quit and go to jail, especially if you go to work for a competitor. The criminalization of employment law shows just how hostile employer-employee relations have gotten.

Here are some laws your employer might try to prosecute you under:  

Computer Fraud and Abuse Act: This is a law that was geared to hackers. Basically, it says if you access a computer without authorization, or if you exceed your authorization, you can go to jail. An employer recently tried to claim that an employee who used his authorized access to download customer contact lists violated this law. Fortunately, the 9th Circuit said the law didn’t apply to misuse of information employees were authorized to obtain. He had to appeal twice, because the 9th Circuit originally ruled against him. Does that mean courts in other circuits won’t let your employer toss you in jail if you copy something they think you shouldn’t have when you leave? I wouldn’t bet my freedom on it.

The 9th Circuit pointed out that other circuits out there disagree: “We remain unpersuaded by the decisions of our sister circuits that interpret the CFAA broadly to cover violations of corporate computer use restrictions or violations of a duty of loyalty. See United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010); United States v. John, 597 F.3d 263 (5th Cir. 2010); Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006).”

Your employer wants to make violating your trade secret or confidential information agreement a crime.  

National Stolen Property and Economic Espionage Acts: A computer programmer found out the hard way after downloading the code he wrote for a program that employers are playing hardball. He was convicted under these two laws and had to appeal. The 2nd Circuit said the National Stolen Property Act didn’t apply to intellectual property. It also said the Economic Espionage Act didn’t apply to a product that wasn’t intended for sale, but was only for internal corporate use. Still, employers are successfully prosecuting former employees if they think trade secrets were stolen.

It’s bad enough that employers are making everyone from the janitor and receptionist to their top sales people sign noncompete agreements that limit their right to work for competitors. Most employees don’t have the resources to fight, so they end up out of their chosen field for 1 – 2 years. Now, they can face jail time too.

It cost these employees a boatload of money to defend themselves. Most employees couldn’t afford to fight. I wonder how many employees will end up in jail in other circuits because they couldn’t afford to fight.

Another concern is that employers will use the threat of criminal prosecution to chill whistleblowers from copying information about employer illegal activities. Whistleblowers have a tough enough time and take enough risk for their heroic efforts. They shouldn’t have to risk their freedom in order to bring down a criminal enterprise.

It’s time to urge legislators to make employment laws fair to employees. Nobody should be forced out of their profession or lose their freedom just because they don’t have enough money to fight a bully employer.