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.

Thursday, October 6, 2016

Now That My Office Is Closed For Hurricane Matthew, Do I Get Paid?

So I'm sitting here waiting to get hit by Hurricane Matthew, as is most of eastern Florida, Georgia and the Carolinas and I'm already bored. One of the worst parts of hurricanes is waiting in a shutter-enclosed cave, knowing havoc is about to be wreaked. What I do know is that almost every employer in the cone of concern is shut down right now.

It occurred to me that you may be wondering: do I get paid for this?

Whether you’re entitled to be paid when the office is closed depends on whether you are “exempt” salaried or not. Just being salaried doesn’t necessarily mean you aren’t entitled to overtime. It’s possible to be salaried and still non-exempt from the requirements of the Fair Labor Standards Act. Many employers misclassify employees as exempt to avoid paying overtime. If you work more than forty hours per week, it’s better to be non-exempt. But in the case of weather and emergency closings, it’s probably better to be exempt.

Exempt employees: If you’re exempt and you worked any portion of the work week, you have to be paid your entire salary, whether or not the office is closed for a natural disaster such as hurricane, snow, tornado, or flood. Further, Department of Labor regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” This would include natural disasters, so if you are able to work after a storm then you must be paid even if you didn’t work any portion of the week. If you can’t get there on time or have to leave early due to the flooding but the office is open, they can’t deduct for any partial days you worked.

Vacation time and PTO: Your employer can deduct from your vacation time or PTO for the time taken. However, if you have no accrued vacation or PTO time available, they still can’t deduct from your pay if you’re exempt.

Non-exempt employees
: If you are non-exempt, then your employer doesn’t have to pay for the time the office is closed. However, if your company takes deductions and you’re a non-exempt salaried employee it may affect the way overtime is calculated.

Who Is Exempt?: You’re not exempt unless you fall into very specific categories, such as executives, administrative employees, or learned professionals. Plus, your job duties must fall within those categories, not just your title. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This is one of those rare times when it's better to be exempt, so be glad the new rules expanding entitlement to overtime don't go into effect until December i.

Pay For Reporting To Work: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. Florida has no such requirement (so maybe it’s a good time to start complaining to your legislators).

If you’re hit with the big storm, get in touch with your supervisor or manager as soon as possible to find out whether or not you’re expected to be at work. If you can’t get in touch with anyone, then only go in if it’s safe for you to do so.

Stay safe!

Friday, September 30, 2016

Can You Be Fired For Your Facebook Posts? Yes (With Exceptions)

Do I really have to tell you to watch what you say on social media? Apparently I really do because I run into people all too often who were fired for inappropriate postings, emails, texts, or other comments. My best advice is this: don't put anything in writing that you don’t want posted on the front page of the company newsletter.

Examples of social media firings I've heard of that stand out are posting cruise pictures while on FMLA leave (doh!), posting a foul curse-laden rant about the company (probably legally protected), posting a photo of a nude museum statue (a coworker complained of sexual harassment even though they weren’t FB friends), and posting pictures of an office party gone wild (with some resulting retaliation by a boss captured on film). Basically, I’d say use your judgment and think twice, then think again before you post, whether pictures or just your thoughts. If you don’t think it would go over well on the company newsletter front page, don’t post it.

That being said, although HR does get involved in employee social media posts, 90% of the time it’s none of their business. And the NLRB would agree with me to the extent that employees have the right to gripe about and discuss working conditions. However, if the comments are racist, sexist or otherwise demonstrate that you are inclined toward unlawful discrimination or harassment, then I’d say it depends on the situation. You might be someone HR would want to give extra scrutiny to regarding your workplace behavior. 

But if you posted, say, a Nazi symbol on your Instagram but acted respectful and considerate of coworkers at all time, then I’d go back to my position that it’s none of HR’s business. On the other hand, posting a Nazi symbol, sexist comments or other evidence of a bias means that, if HR is watching or finds out about it, they’re on notice of the employee’s propensity to discriminate. If you do it at work, then the company could be strictly liable. So it’s a balancing act. You probably want to avoid being on that HR tightrope by watching what you post.

Most times it’s better for HR not to know what people are posting unless it somehow becomes disruptive at work. If HR is checking employee social media, they may accidentally find out about your disability, pregnancy, sexual orientation or other protected status and subject the company to potential discrimination claims.

If HR is going to scrutinize social media, personal emails written on work devices or other things that employees may think are none of their business, then HR should make a written policy and put people on notice. Otherwise, it will become a morale issue.

Some states have laws protecting employees for being fired for legal off-duty activities. Those laws may protect employees who post on their own time. 

For political posts, some states have laws that may help. For instance, in Washington State, it's illegal to retaliate against employees for failing to support a candidate, ballot position or political party.
California, Colorado, New York, North Dakota and Louisiana, say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people." Here in Broward County, it's illegal to fire employees based upon political affiliation.

So you do have some legal protection for some social media posts. However, use caution, especially during political season.

Friday, September 23, 2016

Trump Campaign Noncompete Agreements May Break Multiple Laws

You may have seen that the Trump campaign is imposing confidentiality and noncompete agreements on its staffers that are quite broad. Here's the agreement, posted online. It's a great example of what not to do. Let's take a look at what they did wrong for a moment.

Election law: The agreement is with The Trump Organization. If Wikipedia has it right, “The Trump Organization (formerly Elizabeth Trump & Son) is an American privately owned international conglomerate based in Trump Tower in Midtown Manhattan, New York City. It serves as the principal holding company for Donald Drumpf's [okay, so some John Oliver fan has been playing with the site, but I think the rest is correct] business ventures and investments.” So they may well be violating election laws here because it is the campaign, not “the Trump Organization” that should be hiring campaign workers. If they work for The Trump Organization, then there are some serious in-kind contribution issues going on. On the other hand, if they are being paid by the campaign, why is the campaign paying for legal issues relating to his family members? I wonder if the Federal Election Commission has already opened an investigation on this.

National Labor Relations Act: Onto the employment law issues, NLRB has been cracking down on non-disparagement agreements that seem to prevent or discourage criticism of management during employment, and this one does that. An example is Quicken Loans, Inc., 359 NLRB No. 141 (June 21, 2013), where an administrative law judge found that a similar provision would have a chilling effect on employees who wanted to discuss working conditions. The judge said the "line between lawful and unlawful restrictions is very thin and often difficult to discern." The judge found the agreement language violated the law and that prohibiting disclosure of "non-public information relating to . . . the Company's business, personnel . . . all personnel lists, personal information of co-workers . . . personnel information such as home phone numbers, cell phone numbers, addresses and email addresses" would hinder employees' exercise of their rights under the National Labor Relations Act.

Antitrust: I don’t know what level employees that The Trump Organization is imposing these agreements at, but there can be serious antitrust issues if the company has no legitimate interest to protect other than preventing competition. The New York AG has been going after companies imposing noncompetes with no legitimate interest. A good example is the Jimmy John’s case. The FTC and Department of Justice also have antitrust divisions that could scrutinize a noncompete agreement imposed solely to prevent competition. Here are some pieces I’ve written on topic:

Non-Compete Agreements Can't Be Used to Prevent Competition

Low-Wage Worker Noncompetes? Can You Say Antitrust?

I'm not the only one who has noticed problems with these agreements. For an excellent analysis of some legal problems with this agreement, take a look at Robert Teachout's piece on SHRM's website, Trump Noncompete Agreement Draws Criticism.

So if you're drafting a noncompete or confidentiality agreement, the Trump campaign's agreement is a good example of what not to do. If your employer's agreement looks a lot like this one, it may be time to get some legal advice from an employee-side employment lawyer in your state, because the laws on noncompete agreements vary from state to state.

Friday, September 9, 2016

Is Retaliation Illegal? Sometimes

Lots of people approach me every week and say they feel they were retaliated against. I usually have to ask, "Retaliation for what?" I think there's a basic misunderstanding of what retaliation is, and when it's illegal. The first part of the problem is understanding retaliation itself. Webster's defines retaliation as:
To do something bad to someone who has hurt you or treated you badly : to get revenge against someone
So retaliation = revenge.

The next issue, which is the core problem in retaliation cases, is whether what you did that was "bad" in your employer's eyes is something that is legally protected against retaliation. Here are some examples:

1. Complaining about your boss being incompetent: Your boss is pretty much guaranteed to retaliate if you complain about him to management. If you complain that he's incompetent, you have zero legal protection. He's allowed to exact his revenge. However, if you discuss with coworkers that your boss is a terrible manager and you go to his boss or HR to discuss improving your working conditions on behalf of yourself and your coworkers, then you may well be protected by the National Labor Relations Act.

2. Complaining about illegal activity: If you complain that a coworker or your boss is embezzling company funds, taking kickbacks or stealing company property, you probably have zero legal protection (if the company is publicly traded, you may have some protection as an SEC whistleblower, but most people have no protection). And I see it happen time after time, that an employee reports that a coworker is ripping the company off and they are retaliated against. However, if you complain that he's trying to make you defraud Medicaid or do something else that's illegal on behalf of the company, you may well be a protected whistleblower.

3. Complaining about bullying, hostile environment or harassment: Bullying is only illegal in Tennessee, and only if you're a government employee in Tennessee. Complaining about bullying comes with zero legal protection against retaliation. If you complain that you're in a hostile environment or being harassed, you're complaining about bullying. Again, zero legal protection. However, bullies tend to pick on the weak and the different. If you report that the bully is targeting you or others around you based on race, age, sex, national origin, religion, disability, pregnancy or other legally protected status, then you have legal protection against retaliation. You have to add the discrimination piece to have legal protection. 

The other possible legal protection if you complain about bullying is the National Labor Relations Act. If you discuss with coworkers that the bully is making life miserable and you go to management or HR to report this on behalf of coworkers and yourself (and you aren't a supervisor, and you are otherwise covered under the NLRA) then you may be legally protected against retaliation.

4. FMLA, worker's comp claims, disability accommodations: You do have legal protection against retaliation for seeking a remedy under many employment law statutes. If you take Family and Medical Leave, make a worker's comp claim or seek accommodations for a disability, you are likely protected against retaliation. However, if you just take sick time or vacation time, most states have no law protecting you against retaliation for that.

5. Complaining to police: If you're punched in the face by a coworker or threatened, most states don't legally protect you against retaliation for going to the police. However, EEOC says, in its latest guidance on retaliation, "it is protected opposition for an employee to contact the police seeking criminal prosecution of a coworker who engaged in a workplace assault motivated by disability, race, or sex, even though it is not a complaint to a manager or to a government agency that enforces EEO laws." So you're legally protected if your coworker punched you due to your religion or race. You're also legally protected if you file a police report about rape at work. 

6. Complaining to DOL, OSHA, EEOC: If you go to the Department of Labor to complain about unpaid overtime, OSHA to complain about workplace safety issues or EEOC to file a charge of discrimination, you are always legally protected against retaliation.

So you can see that retaliation is mostly legal. However, in many situations it only takes a little change in your complaint or activity to be legally protected against retaliation. The way you complain makes all the difference. Think carefully before you make a complaint at work if you want to prevent retaliation.

Friday, August 26, 2016

More States Pass Domestic Violence Victim Workplace Protection

Domestic violence victims have enough problems without also having to deal with coworkers stigmatizing them and possibly getting fired. The trend is for states to protect sexual violence from workplace discrimination.

Most recently, five states enacted paid sick leave laws that include requiring paid leave for domestic violence victims. Those states are Vermont, California, Connecticut, and Massachusetts and Oregon. These are overall paid sick leave laws that protect both domestic violence victims and employees who need time off to care for victims of domestic violence. The paid leave accrues depending on each state’s law.

I frequently raunch on Florida for being so anti-employee, but I have to give my home state props for being one of nineteen states that have laws protecting employees who become domestic violence victims. Here is a brief summary of the state and local laws protecting domestic violence victims from employment discrimination:

  • Indiana prohibits discrimination for either filing a petition for a protective order or for actions taken by the abuser. It also provides that employer and employee may mutually agree to accommodations.
  • Delaware’s law makes it illegal to discriminate against domestic violence victims and requires employers to make reasonable accommodations such as schedule changes or changes in job duties.
  • North Dakota allows state employees up to 40 hours of sick leave for domestic violence victims and their family members.
  • Massachusetts' law requires employers with 50 or more employees to give up to 15 days off for medical attention, securing new housing, court proceedings and other needs related to the domestic violence.
  • New Jersey's law says an employee/victim is entitled to time off for treatment or counseling, and also says they have to be allowed to attend legal proceedings, civil or criminal, relating to the incident.  
  • California law says an employer can't fire an employee for being a domestic violence victim, and it also requires employers to make reasonable accommodations to secure the workplace for the victim's safety. Employers with 25 employees or more must grant victims reasonable leave to deal with court dates and other issues relating to the domestic violence.
  • Florida law grants domestic violence victims up to 3 days of protected leave. Employers cannot discharge, demote, suspend, retaliate or otherwise discriminate against an employee for exercising their rights to domestic violence leave. To our legislature's credit, this law has been in place since 2007, so we were a whopping 7 years ahead of pro-employee Massachusetts for a change. Miami-Dade County has an ordinance providing for up to 30 days of protected leave.
  • Colorado provides up to 3 days of leave if the employer has 50 or more employees.
  • Connecticut provides for up to 12 days of leave and bans discrimination against domestic violence victims.
  • Washington DC has a sliding scale for leave depending on how large the employer is.
  • Hawaii also has a protected leave, the amount of which depends on the size of the employer. Employers can't discriminate against victims and also must provide reasonable accommodations.
  • Illinois law requires reasonable accommodations, prohibits discrimination and 8 - 12 weeks of protected leave, depending on the size of the employer
  • Kansas law says employers can't discriminate against domestic violence victims who need time off.
  • Maine law grants reasonable protected domestic violence leave.
  • New Mexico provides up to 14 days of protected leave.
  • New York state prohibits discrimination against domestic violence victims. New York City and Westchester County require reasonable accommodations for domestic violence victims.
  • North Carolina prohibits discrimination against victims for taking reasonable domestic violence leave.
  • Oregon requires employers with 6 or more employees to grant reasonable leave and prohibits discrimination. Portland also requires protected domestic violence leave.
  • Rhode Island prohibits discrimination.
  • Washington provides reasonable leave. Seattle has its own leave ordinance and also bars discrimination.
  • Philadelphia provides leave depending on the size of the employer.

proposed federal law to protect domestic violence victims from discrimination at work went nowhere. Wouldn't it be good to have some uniform protections? Who the heck is against protecting domestic violence victims? Do we really think that getting beaten up should be grounds for termination? 

A pretty good summary of state laws up through September 2015 is here. It should also be noted that many states have laws protecting crime victims from being punished for missing time from work to testify in criminal proceedings.

Many states have laws protecting crime victims, allowing them time off from work to testify and/or recover. If the domestic violence causes a serious medical condition, then the employee may also be entitled to Family and Medical Leave if they qualify.

If you think domestic violence victims have enough problems without also having to worry about being fired, talk to your state legislators and members of Congress and ask them to pass more legal protections for this vulnerable group of employees.

Friday, August 19, 2016

Dear HR: Stop Telling Employees They Can't Apply For FMLA Until They Use Their Vacation

For about the dozenth time this year, I heard another sob story about an employee who absolutely qualified for FMLA leave, yet was told by HR that they couldn't apply until they used up their vacation or PTO time. This is wrong on so many levels, and it screws both the employee and the employer. So stop it.

Seriously. Stop it.

It screws up the employee because their boss assumes they're taking unprotected leave and so those sick and vacation days used for hospital stays, doctor visits and caregiving responsibilities are held against the employee in reviews, consideration for promotions, and discipline.

It screws up the employer because once the employer knows leave should be covered by FMLA, the employer's legal duties under FMLA kick in:
When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA purpose, the employer must notify the employee of his or her eligibility to take leave, and inform the employee of his or her rights and responsibilities under the FMLA. When the employer has enough information to determine that leave is being taken for a FMLA-qualifying reason, the employer must notify the employee that the leave is designated and will be counted as FMLA leave.

 FMLA is mostly about unpaid leave, but employees do NOT have to use all their paid leave before applying:.

Employees may choose to use, or employers may require the employee to use, accrued paid leave to cover some or all of the FMLA leave taken. Employees may choose, or employers may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA. The substitution of accrued sick or family leave is limited by the employer's policies governing the use of such leave.
The consequence to employers can be severe. First of all, the employee may be entitled to more leave than you're legally required to give if you mess this up. Second, if the employee's leave should have been designated as FMLA and wasn't, and you hold that time off against them, you're talking FMLA lawsuits plus disability discrimination lawsuits.

Employees, if you qualify for FMLA (you've been there at least a year AND worked 1250 hours or more in the past 12 months AND there are 50 or more employees of the employer within 75 miles of your work location) then don't believe HR when they say you can't apply. As soon as you know you have a serious medical condition and will need doctor's appointments or medical treatment, apply for intermittent leave. Employers frequently forget about intermittent leave, and it's a good thing. Here's more from the Department of Labor on intermittent leave:

(Q) Does an employee have to take leave all at once or can it be taken periodically or to reduce the employee’s schedule?
When it is medically necessary, employees may take FMLA leave intermittently – taking leave in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.
Leave to care for or bond with a newborn child or for a newly placed adopted or foster child may only be taken intermittently with the employer’s approval and must conclude within 12 months after the birth or placement. 
(Q) Can an employer change an employee’s job when the employee takes intermittent or reduced schedule leave?
Employees needing intermittent/reduced schedule leave for foreseeable medical treatments must work with their employers to schedule the leave so as not disrupt the employer’s operations, subject to the approval of the employee’s health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodate recurring periods of leave better than the employee’s regular job.
So, HR folks, can we agree that you'll stop telling employees they can't apply for FMLA until they use their vacation? And employees, feel free to show them this post if they say that.

Friday, August 12, 2016

Follow Trump's Advice, Lose Your Sexual Harassment Case

By now you've probably heard Donald Trump's advice to sexual harassment victims: just quit your job. The problem with this (besides the fact that not everyone is a billionaire who can quit without having a job lined up) is that if you do quit, you may well give up your right to sue for sexual harassment.

You see, the Supreme Court, in its infinite wisdom, says that if your employer has a published sexual harassment policy, you have to report sexual harassment according to the policy and give them a chance to fix it. Only if they don't fix it, or if retaliation occurs, can you then sue.

Quitting makes things even more difficult. In order to sue for lost wages, you have to show that you were forced to quit. In legal terms, that you were constructively discharged. If you quit, you have to prove that the workplace was so awful due to retaliation or sexual harassment that no reasonable person would stay. When you have a jury of unemployed folks and people working minimum wage jobs with abusive bully bosses, that's going to be a tough thing to convince them.

Also, if you just quit then the harasser will continue their harassment. They'll just pick another victim. So if you don't report it, don't file with EEOC, and say nothing, you guarantee another employee will be sexually harassed.

Here's what you have to do if you want to stop a sexual harasser:

a. Read your handbook: There should be a sexual harassment policy. If it isn't there, the employer is also supposed to have a poster in the break room or other prominent area saying how to report it.

b. Report it in writing: If there's an 800 number, forget that. Report it in writing to HR or someone in management. Otherwise, HR will deny you reported sexual harassment. They'll claim you reported "unfair treatment" or something else not legally protected against retaliation (if they admit you reported anything at all).

c. Tell a coworker: If you don't tell others who work with the harasser what is happening to you and that you've reported it, then the harasser may well move on to an easier victim. The NLRB says your employer can't prohibit you from discussing sexual harassment with coworkers (assuming you aren't a supervisor or in management).

d. Keep notes: Write down each instance, with dates, what happened and names of witnesses. Keep copies of texts and emails. Keep your notes and evidence at home so they can't take it away and conveniently lose it if you're fired.

e. Don't wait: You have either 180 days or 300 days from the sexual harassment to file with EEOC if they don't fix the situation. Don't delay.

f. Talk to a lawyer: If you think you have a sexual harassment or retaliation claim, talk to an employment lawyer in your state.

Don't follow Trump's advice. Don't let a sexual harasser drive you out of a job unless you have another job lined up.