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, December 8, 2017

Aftermath of #MeToo? I Predict Ugly Backlash

In the wake of Al Franken's resignation over eight women's allegations of forced open-mouthed kissing, butt grabbing and boob groping, there has been much angst. Many of my fellow liberal Democrats are beginning to understand what many HR folks have had to go through when the top salesperson, popular CEO or much-loved manager is accused of sexual harassment. The overwhelming temptation is to deny, attack the accuser, circle the wagons and protect the harasser.

I have to admit, that was my first instinct as the initial accusations came up against Sen. Franken. At first, I thought this must be someone paid off by right-wing interests to discredit a strong liberal voice. But then another came forward. And another. One is a former Democratic aide. No, he's not a rapist like some of the harassers we've heard about lately. He didn't drop his pants. But a U.S. Senator forcing women to kiss him while he shoves his tongue down their throats and grabbing butts during photo ops while in office is bad enough.

I've been saying it for 31 years and will keep saying it: if you don't stop a sexual harasser, their behavior accelerates and spreads. If Democrats did a wink-wink at Franken's accusations and did nothing to punish him, he would assume he could get away with such behavior and continue, plus others would assume they could do the same. Sure, Franken is the much-beloved manager, the top salesperson, the popular CEO. There was talk of running him for President.

But failure to act would perpetuate the culture of sexual harassment that exists in this country. That's how we got here in the first place.

Democrats and liberals are mad. These are the folks who would normally be clamoring for tougher sexual harassment laws in the wake of #MeToo. I predict that the loss of Franken and Conyers, plus some major Democratic fundraisers, will mean that little is proposed to protect sexual harassment victims. And I wouldn't expect any such activity from Republicans in any instance, since the Republican leadership seems only to care about women if they are a fetus or carrying a fetus.

It's Already Getting Ugly Out There

I've heard ugly things about the victims and the women who demanded Franken resign already:

  • "Stupid bit##es. They'll regret this." Of course we will. We'll suffer the loss, the same as the company suffers when the top salesperson or the CEO is let go. But we should be mad at Franken for failing to stop his boorish comedy routine when he became a Senator, not the accusers, and not the women in Congress who demanded he step down. Do you honestly think the women in the Senate didn't think about losing the possibility of taking back the Senate before they acted? They're on the front lines. Of course they did. But they also had to be thinking that Franken had lost any moral authority on women's issues or other issues of character if he stayed.
  • "It's a matter of degree. What he did wasn't as bad as Weinstein." I've heard this about Franken and about much-loved Garrison Keillor. Keillor claims he was fired because he only accidentally touched a woman's bare back and I call bull****. For us to believe that, we have to assume that the head of Minnesota Public Radio is a moron willing to sacrifice their biggest moneymaker over nonsense. I don't believe that for a second. I guarantee that Keillor has a rock-solid contract saying he can only be fired for cause, so if he really believes what he's saying I guess we'll hear about it in court. But I suspect we won't because then the real allegations will come out publicly. As for Franken, no, he isn't as bad as Weinstein. So maybe this isn't fatal to his career. Maybe if he got some counseling and sexual harassment training he could apologize to the women and voters and say he will do better. Maybe they will give him a second chance. I might if I were them. But I wouldn't keep him as a salesperson and I don't think he should go consequence-free as a Senator.
  • "There's no proof. It's just her word." Yep. Welcome to my world. I face this every time I bring a sexual harassment claim. Most harassers aren't stupid enough to leave witnesses or evidence. But here's the thing. The women who come to me are usually terrified. They're crying in my office. They suspect that, if they report the harassment, they'll face shunning, mockery, retaliation, loss of their career. And they aren't wrong. In one case, I'm friends with a very liberal man who heard about an accusation that caused a man in his industry to resign. His response? "I would never take a meeting with her. I wouldn't trust her." This was a case where the company's lawyers investigated her allegations. Do you honestly think the company's lawyers didn't do everything they could to discredit her and save their guy? If the company's lawyers are against him, something really serious must have happened. Yet this woman's career is probably damaged irreparably. Men will Mike Pence her and refuse to meet with her alone. They will assume she's a liar, although she did not sue or seek money based on her accusation.
  • "These women are liars. They're just looking for publicity." Oh, sure. Everyone wants publicity that will get them threatened, shunned, avoided and mocked. Because they all say how well things went for Anita Hill and Monica Lewinsky. Most of these women came forward despite being terrified and are not seeking any money. If they are still within the statute of limitations, they should seek money because that's the only thing corporations understand.

I Predict Backlash

I predict backlash. These are just some of the more printable comments from liberals that I've seen. If liberals have turned on the #MeToo movement, backlash is inevitable.

Here are some of the backlash consequences I predict:

  • Judges and juries: They will punish sexual harassment victims even worse than usual. The victims will be greeted with more suspicion and skepticism and even worse case law than what exists today. The raised consciousness that everyone seems to think will happen, the presumption of truthfulness of the accuser, will fail to come to fruition. 
  • The victims: Many of the women who openly made accusations will be shunned and avoided. Their careers will take a step backward and maybe halt altogether. While we've had a brief period where women got brave and openly made accusations, that will roll way back as the consequences become apparent.
  • The law: No improvements will be made. We won't get a separate law on sexual harassment that makes the standards and penalties clear. We'll be stuck with cases interpreting Title VII and state laws that are difficult to navigate. There will be a push to roll back sexual harassment protections in the next few years, and the public may buy it. Little or nothing will be done to protect victims against retaliation.
  • The harassers: Some who were outed will manage to redeem themselves and come back in their industries. Some will continue and get worse because nobody dared to report them. The culture of sexual harassment will continue in this country for at least another decade.

I hope I'm wrong. I hope that we can all come together and work on some sensible improvements to the existing sexual harassment laws. I hope we will be in a new era of believing the victims who come forward to accuse sexual harassers.  I hope we crush the culture of sexual harassment and move forward toward true equality for women.

But I'm not wrong.

Friday, November 17, 2017

HR And Management-Side Lawyers Need To Change If We Are To End Sexual Harassment Culture

Someone recently asked me what could be done to change what is clearly a culture of sexual harassment in this country. Not just how do we enforce the law, but what do we have to do above and beyond the law to end the harassment epidemic. It's a tough question, but I do have some thoughts.

The first and largest problem is that the victims are afraid to come forward. And there's good reason for that. In my experience, many, if not most, sexual harassment victims who report it suffer some form of retaliation. They are disbelieved, mocked, shunned, ostracized, transferred, demoted, fired or shunted off to never never land where they have no advancement opportunities.

Harassers, on the other hand, are defended and protected. If someone is moved, it is usually the victim.

I blame HR for this, but it's not the fault of hardworking and well-meaning HR people so much as a combination of the "complainer-as-enemy" mentality perpetuated by a large portion of the management-side bar and some really bad cases interpreting the law on sexual harassment. HR folks represent the company, after all. They are trained that their job is to protect the company at all costs. But if we look at the cost in morale, punitive damages, and loss of quality staff that sexual harassers cost employers, then rooting out sexual harassment should be considered a key part of protecting the company.

The result of "complainer-as-enemy" corporate culture is that, when a complaint is made, the tendency is to do everything possible to discredit and disbelieve the complainer and circle the wagons around the harasser. That needs to change.

Here is what I would do if I had a magic wand to change the way the management-side bar and HR handle sexual harassment complaints:

Start from the premise that the complainer is telling the truth. As we've learned from the many women who came forward years later to tell stories, complaining is terrifying. Most sexual harassment victims had to get up a lot of courage to even come to me, much less go to HR. Yet the Supreme Court says they have to complain if they are to win a sexual harassment case. By the time they get to the point of reporting it, you should assume they are telling the truth. Treat them with respect. It took a lot of courage for them to come to you.

Contact former employees. Now that you are assuming the victim is telling the truth, your investigation should be different. Act like the reporter who investigated the Kevin Spacey sexual harassment allegations and see if you can find others who were harassed. Contact former employees who worked with the alleged harasser and see if they will admit to being victimized. These are the folks most likely to have the courage to admit the truth. Most current employees will lie to save their jobs. Investigations right now start from the premise that she or he is lying and try to prove that. If you flip the investigation and try to prove she or he is telling the truth, you might actually uncover some sexual harassment.

Create a truly safe space for reporting. It's almost impossible to keep the identy of the victim secret. Coworkers' natural tendency is to shun and avoid the victim because they don't want to be associated with someone who is radioactive. You have to shut this down. Do not allow coworkers to treat the victim differently. Retaliation should be dealt with on a zero tolerance basis. Even if you do disbelieve the person who complained, you must protect them. Otherwise, you create a culture of fear and nobody else will report sexual harassment.

Punish the harasser, not the victim. I don't care if the harasser is your superstar sales person, the CEO or the founder of the company. The victim should never be the one transferred. If the harasser gets away with it, they will accelerate their behavior. Once you are on notice that they have a propensity to sexually harass, the company will be liable for punitive damages when he does it again. And a culture of sexual harassment spreads and turns the company into a frat house a la Fox. If you allow the harasser to continue harassing, you deserve to get hit with a megabucks punitive damages judgment.

Stop crushing the victim. In the complainer-as-enemy culture that exists right now on the mangement side, victims are put through hell. Management digs up sexual history, performance issues, problems with former employers, every bit of dirt they can to tarnish the victim. When you do that, you create a culture of sexual harassment that wastes valuable productive time at work and brings us to the place we are today. Is it any wonder victims assume that this behavior is expected and they must tolerate it? Why are we surprised when victims don't report it when they see what happens to those that do?

Reward the person who steps up to stop a harasser: Whether it be the victim or a concerned coworker or supervisor, if you investigate and find out that there really is a sexual harasser in the company, you should reward the person who reported it instead of punishing them. This is a brave person who stepped up at the risk of their job. They should promoted and given a bonus, not put on the do-not-promote list or fired.

All of the above, and the fact that it won't happen, is why I predict that once the media attention dies down we'll go back to the way things were before, and sexual harassment will continue to be the norm rather than the exception. Please prove me wrong.

Thursday, November 2, 2017

Insurance Open Enrollment is Now Through Dec. 15. Be Persistent. Spread the Word.

The open enrollment period for the Affordable Care Act/ObamaCare started yesterday and continues through December 15. You may not have heard about it because the Trump Administration cut advertising by 90%. So please tell a friend. Send the URL to this article to anyone you know who needs health insurance.

Here are some things you need to know.

The site will shut down periodically: This is why I said be persistent. During open enrollment, the Trump Administration plans to shut down the website for registration for 12 hours nearly every Sunday. Don't give up. They're trying to discourage you from enrolling. Don't let them win.

Enroll at healthcare.gov: Here's the URL to enroll for insurance or change your plan.

If you lose your job: Once you lose insurance because you lost your job, you don't need to be in the open enrollment period. You'll have a special enrollment period that gives you an opportunity to get coverage other than COBRA if you want it.

Subsidies not cut for everyone: Even though the Trump Administration cut the subsidies available, causing many premiums to skyrocket, subsidies are still available for some, but only during open enrollment. If your income is 100% to 250% of the federal poverty level, you still get subsidies. Those income levels for 2018 are:
  • $12,060 to $30,150 for an individual
  • $24,600 to $61,500 for a family of four
Open enrollment is cut in half: Last year, open enrollment was 3 months. This year, it's only 6 weeks. Don't wait.

It hasn't been repealed: Although surveys show 10% of Americans already think the Affordable Care Act was repealed, it wasn't. Yet. However, 3.5 million more people are uninsured since Trump took over.

Just be aware that President Trump is doing everything he can to keep you from being insured. Fight to keep your healthcare. It's a matter of life and death.

Friday, October 20, 2017

#MeToo: Most Women Have Been Sexually Harassed. Let's Start Believing Them.

You're probably familiar with the "Me Too" campaign on Twitter and Facebook where women are posting #metoo if they have been sexually harassed or sexually assaulted. I'm one of those who posted. Yes, even an employment lawyer who handles sexual harassment cases has been sexually harassed. I'll tell one of my stories in a minute.

People keep asking me why all these women have been so silent for so long. They blame the victims for keeping their mouths shut. While different women have different reasons, I can opine as to some of them. I think the major reason most women don't come forward is that we, as a society, tend not to believe them. Women who complain about sexual harassment at work are frequently demonized, mocked, called liars, and retaliated against. Women who take these cases to court have a tough time getting past a judge to a trial, and then have an even tougher time convincing a jury. In a he said-she said, we tend to believe the "he" over the "she."

Look what happens to the first woman (or even first few women) who reports sexual harassment against any famous person. She is almost universally ridiculed and vilified. To this day, Monica Lewinsky is a punch line and Anita Hill is still a villain to the right wing. Look at the women who first came forward more recently about Bill Cosby, Roger Ailes, Bill O'Reilly, and Harvey Weinstein. Read the comments as they are trashed and humiliated.

We have to do better. We, as a society, know this is happening and do nothing. Women, in particular, need to support those who come forward. Victims are told to be quiet or they will be destroyed.

The laws need to be stronger and less of a maze in order to protect sexual harassment victims. The trouble started with the Faragher and Burlington cases where the Supreme Court said victims had to report sexual harassment to HR or management under the company's sexual harassment policy and give the company a chance to fix the situation. If they didn't, they lost their right to sue.

Then there's the whole "severe or pervasive" standard that frequently makes a mockery of Title VII. For it to legally be sexual harassment, it has to be so severe or so pervasive that it alters the terms and conditions of your employment. Most women I know that a single boob grab is severe and alters tthe terms and conditions of your employment, but the courts disagree. And then some say "severe and pervasive" and impose even more difficult standards.

Don't believe me about how tough the courts are on sexual harassment victims? Here's one of my least favorite cases saying sexual harassers get four free gropes a year in the workplace before the company can be held liable. In Myers v. Central Florida Investments, Inc., 2006 U.S. Dist. Lexis 51504 (M.D. Fla.), here’s what the federal judge said about the case:
Additionally, from an objective standpoint, consideration of the factors noted above does not support severity or pervasiveness in this case. First, the harassing conduct, considered as a whole, cannot be said to have occurred with great frequency. Ms. Myers alleges ten to twenty touchings – mostly of her legs, but sometimes of her butt – over a period of approximately five years – two to four per year; thus, the touchings were infrequent. . . . In sum, considering the totality of the circumstances, from an objective standpoint the harassment did not rise to the requisite level of severity or pervasiveness.
The case was reversed later, not because of the four gropes rule.

Sure, things have gotten better for sexual harassment victims with President Obama's judicial appointees, but that's about to change again with the slew of Trump appointments. We'll have to rely on Congress and state legislatures to change the law if we want to protect sexual harassment victims better, and that won't happen anytime soon.

Because of #metoo, I thought I'd share just one of my own sexual harassment stories. When in college, I took a job that was posted in the college career office. I was an art model. Yes, nude. But it was for an older man (oh, hell, he was probably the age I am now or younger) and I was in his house. His wife was in the house at all times I was there. I thought I would be safe because the college referred me and because of the wife being there. Yet, midway through our sessions, he decided to do a double boob grab from behind as I was getting dressed. I was probably 19 or 20. I didn't know squat about the law, but I knew it was wrong. I also knew he was my ride back to the college so I pushed his hands away and stayed quiet. I was terrified of what might happen if I screamed.

After he dropped me at the college, I reported the incident to the college career office. I asked them to remove his listing. They refused. They saw that it was an art modeling job and then discounted everything I said after that. They clearly didn't believe me or care. They gave me the impression they assumed I asked for it. This was a women's college that was supposed to be all about empowering women. Yet they ignored my plea. They kept his posting at the college, and I assume he continued to be a sexual predator. He actually begged me to come back and let him finish the painting. I refused, of course.

While this wasn't my only sexual harassment story, it was probably my worst because I felt utterly betrayed by my college. I believe they would have a different reaction now if a student reported something similar. At least, I hope they would.

Since Anita Hill, I think some folks woke up and realized that sexual harassment was a real thing. Now, every time there's a big story, some more people wake up.

Who knows? Maybe one day I won't have to handle sexual harassment cases anymore because employers will know the law and take prompt action to protect the victims. Nah.

Friday, October 13, 2017

Is It Time To Quit Your Job? There's No Shame In Ending A Bad Situation

Let's say you hate your job. Maybe you've told colleagues that your employer-provided house is a dump. You've opined that your job was like being in prison. The job is causing you so much stress that you're losing your temper a lot. Colleagues and friends are starting to recommend that you seek help from a mental professional. You're just not good at what you do.

Maybe it's time to call it quits. Not that I'm hinting to anyone in particular.

But seriously, how do you know when it's time to quit? What should you do when you figure out that it's time to go? Here are some things to think about before you hand in that resignation:

  • Will it be more stressful to be unemployed?: This is the first thing I ask clients who desperately want to quit their jobs. Sure, some jobs can be miserable. But is it more miserable than being unemployed for months or even years? Can you afford to live on Florida's measly maximum of $275/week in unemployment benefits? How stressed will you be when you file for bankruptcy, get evicted, lose your car? If the answer is that you'd rather go through all that than stay at the job, it's probably time to quit.
  • Can you afford to be unemployed?: If you have enough savings to last you for months, if you don't need the job, if your spouse or partner can support you, or if you already have another job lined up, maybe it's time to quit.
  • Have you started looking for another job?: If you haven't done your due diligence to find out how long it will take to find something else and how tough the market is, maybe you should start before you quit. Make a fully informed choice.
  • Is the job making you sick?: Some people work in miserable conditions to the point that they become physically or mentally ill. If it has come to the point that your doctor or mental health professional is telling you to get out for your health's sake, it's time to go. No job is worth dying or having a mental breakdown over. However, you might think about taking a FMLA or other leave if available to you so you can take a step back and make the decision in your own time.
  • Are you unsafe at work?: If you are being sexually harassed or harassed due to race, age, religion, etc., report it in writing to HR and give your employer a chance to investigate and fix the situation. However, if you are being physically attacked or threatened with bodily harm and the company won't remove the attacker, then you probably should not go back to an unsafe workplace. I do suggest you report any such incidents to the police and to HR before you let the attacker drive you out of a job.
  • You hate your job: If you hate your job, hate the people, hate the work, it will show. Rather than let your work performance slide and get fired, it's time to start looking elsewhere. Sometimes, the decision to leave will keep you going through a truly crappy job until you are ready to leave on your own terms.
  • You are terrible at your job: Sometimes, the job just isn't a fit. No matter how hard you try, you can't keep up, can't live up to expectations, or just don't have the skills or training necessary. If you've asked for training, done everything you could to get up to speed, then it's time to look elsewhere before you're given the boot. Try not to wait until you're given that PIP, final warning or severance agreement. If you know in your heart you aren't cutting it, then cut your losses.

There are lots of reasons to quit, but the timing is key. Quitting with little or no notice, with no job lined up, that's a pretty serious move. Be sure you have thought it through. If you're unsafe or it's unhealthy, then that's one thing. But otherwise, make your plan, do your job search and go when you're ready.

On the other hand, if you're a billionaire who doesn't need to think about mudane things like how to pay the mortgage, maybe quitting by tweet at 3 AM is the best thing. Hint, hint.

Monday, October 2, 2017

Job Or Self-Employment Lost Because Of Hurricane? You May Qualify For Disaster Unemployment Assistance

Folks who normally don't qualify for unemployment assistance, such as business owners, may qualify for Disaster Unemployment Assistance if they are unable to work due to one of the hurricanes that hit the U.S. Even if you only lost your job for a short time, you should look into this. It's your money, after all. This is part of what your payroll taxes have been paying for.

Here's what the Benefits.gov website says about who qualifies:
In order to qualify for this benefit your employment or self-employment must have been lost or interrupted as a direct result of a major disaster declared by the President of the United States. You must have been determined not otherwise eligible for regular unemployment insurance benefits (under any state or Federal law). 
Payment will be made to an unemployed worker, who as a direct result of a Presidentially declared major disaster: 
  • No longer has a job.
  • Is unable to reach their place of work.
  • Cannot work due to damage to the place of work.
  • Becomes the head of the household and is seeking work because former head of household died as a result of the disaster.
  • Cannot work because of a disaster-incurred injury.
You have to apply in the state/territory where you live. Each state/territory has its own site for applying.

To apply for Disaster Unemployment Assistance in Florida, start here. Here's the announcement about it. You only have until October 16 to apply. Florida's announcement says you qualify if you:
  • Worked or were self-employed or were scheduled to begin work or self-employment;
  • Are not able to work or perform services because of physical damage of destruction to the place of employment as a direct result of the disaster;
  • Can establish that the work or self-employment they can no longer perform was their principal source of income;
  • Do not qualify for regular unemployment benefits from any state;
  • Cannot perform work or self-employment because of an injury as a direct result of the disaster; or
  • Became the breadwinner or major supporter of a household because of the death of the head of household.
 Texas's announcement is here. You have until October 30 to apply. You can apply here.

Georgia's site for applying is here. You have until October 19 to apply. The announcement is here.

The list of disaster assistance available for Puerto Rico is here, and it includes disaster unemployment assistance. I haven't found any announcement yet. Deadline is 30 days from the announcement. Puerto Rico's unemployment compensation websites appear to be down, but a list of them is here.

The list of disaster assistance available for the U.S. Virgin Islands is here and it also includes disaster unemployment assistance. I haven't found the announcement yet. Deadline is 30 days from the announcement. USVI's unemployment compensation website is here.

Tuesday, September 19, 2017

OSHA Protects You From Dangerous Working Conditions Post-Hurricane

I'm getting lots of calls and emails about employers making employees work in conditions they deem unsafe. Here's what OSHA says about workplace safety:

You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.

OSHA also has a flyer about safety during disaster cleanup here. Some basic safety rules:

  • Keep an adequate amount of clean water for drinking.
  • Make sure workers are trained to do any complex or hazardous tasks.
  • Provide the proper equipment such as gloves, respirators, boots, lifting equipment and eye protection.

A host of other specific fact sheets are here. Some particularly useful ones for hurricanes are:

Bottom line for employers is don't be stupid. Don't have employees in business attire climbing ladders and removing debris. Make sure employees are properly dressed. Don't cheap out and try to use your clerical employees to move downed trees or work around downed power lines. The lawsuit you will face when someone is seriously injured or killed will cost you way more than hiring the correct folks for the job.

The worker's page for reporting problems and with more resources is here.

By the way, if your "exempt" employees are doing debris removal or other scut work, they probably aren't exempt from overtime for that work. But that's another issue for another day.