Screw You Guys, I'm Going Home

Why Should Employers Have All the Injunction Fun? How To Stop Your Ex-Employer From Harassing You

2013-06-14T05:30:00.000-07:00

By: Ryan Price, Associate Attorney, Donna M. Ballman, P.A., Employee Advocacy Attorneys

When you leave a job and start working somewhere else, you may be greeted with a letter from your former employer threatening legal action against you unless you quit your new job. The ex-employer may claim you are bound by a non-compete agreement, non-solicitation agreement, or a confidentiality agreement. Your ex-employer may allege that you were privy to trade secrets or other confidential information and claim you are forbidden from working for the new employer, because it is a competitor of your ex-employer. (Ms. Ballman has tackled the ins and outs of these agreements in length in prior posts, so I will not waste your time explaining these dreadful contracts).

Most employees who get letters like this are forced to quit the new job, usually because they cannot afford to defend against a lawsuit if the employer makes good on his wicked promise. However, you may be able to get an injunction against the employer’s anti-competitive and restrictive actions.

An injunction is a court order that would require your former employer to perform an act or restrain the employer from acting in a particular way. In order get a court to issue an injunction, the you’ll have to prove (1) the likelihood of irreparable harm, (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) that a temporary injunction will serve the public interest.

Almost every state has an antitrust statute, or similar law, prohibiting anti-competitive behavior in the market place. Federal law also provides injunctive relief in limited circumstances. Sometimes these antitrust statutes specifically permit injunctive relief against the types of behavior discussed above. For instance, when a person violates Florida’s Anti-Trust Law, the aggrieved party is entitled to injunctive relief against threatened loss or damage and even authorizes attorney's fees and costs to a plaintiff who substantially prevails on such a claim.

Make sure you check your local state statute to see if similar relief is available. Some states do not have antitrust laws, others only have criminal penalties for antitrust violations, and some only permit a civil action to be brought by the state attorney general.

It is common for employers to move for injunctions against ex-employees it believes are violating non-compete agreements and the like. This is usually because antitrust laws, such as Florida’s, have specific provisions providing that the violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of that covenant. This makes it much easier for the employer to obtain an injunction. However, non-compete laws are an exception to anti-trust laws. They are only enforceable if they are supported by a legitimate business interest, not expired, not over-broad, and that satisfy other requirements that vary from state to state.

Normally, proving “irreparable injury” is an uphill battle. In most cases, the irreparable injury must be immediate. This is probably why many employees have not been successful in getting courts to issue injunctions against former employers. However, it is a positive sign for employees that state law makers have drafted these statutes providing injunctive relief. It demonstrates that legislators recognize the importance of preventing monopolies. This means you may be able to persuade a court to enjoin your employer if it tries to restrict you from freely working and competing in the marketplace.

If you believe your ex-employer’s actions may be considered an illegal restraint on trade or commerce, you should contact an employee-side employment attorney in your state. Proving the elements for injunctive relief and antitrust violations can be difficult and you should have an attorney assist you.

If you are successful in getting the injunction, the Court will attempt to maintain the status quo. This means, for the time being, no more pesky letters from your ex-employer. You may now freely enjoy your new job without your ex trying to ruin it all for you.

Top 6 Signs Your Unpaid Internship Should Be Paid

2013-06-07T05:30:00.000-07:00

In honor of my daughter landing her first internship, I thought I'd go through once again an issue that comes up every summer. Many internships that are unpaid are exploiting young people for free labor instead of providing a meaningful learning experience.

If your internship is more about scut work and less about learning, you are probably an employee who needs to be paid, not an intern. Here are some top signs that your unpaid internship is really a job that should be paid:

You aren't learning: An internship is supposed to provide training similar to that you would receive in a vocational school. In other words, you should be learning something helpful to your future career. If you're sorting mail, licking envelopes, filing, digging ditches or picking up the boss's dry cleaning, that work has to be paid. Internship assignments are supposed to build on each other to help you develop more skills, similar to the way each chapter of a textbook builds on the other.
You have someone else's job: If you find out you're the temp covering for someone on maternity leave or you replaced a salaried guy they thought was making too much money, you have a job, not an internship.
You're on your own: Let's say they toss you in a room and say, "Here's the manual. Do this project on you own. Tell me when it's done." You are an employee.
The company benefits, not you: This is where most intern programs go seriously wrong. The company is supposed to be giving training that benefits you way more than it benefits them. If they can make money off what you're doing, or if you're saving them from having to pay another employee, you probably have to be paid.
They promise a job at the end: The whole point of the internship is probably that you want them to hire you somewhere down the line. However, if you are guaranteed a job if you complete a specific training period, you're likely a trainee and must be paid.
Where's my check?: If you go into a job thinking you're going to be paid and they announce only after you start that you're an unpaid intern, you're probably an employee. If you didn't understand before you accepted that there would be no pay while you're training, then you're probably entitled to be paid.

The Department of Labor has been cracking down on illegal unpaid interships for several years. If your employer screws up, they may owe you wages, overtime, liquidated damages that equal the wages they failed to pay, and your attorney's fees. Here in South Florida, we also have some counties with wage theft ordinances that can even triple the amount you're owed. If your internship isn't what you thought it would be, have until the end of the statute of limitations (generally 2 years under the Fair Labor Standards Act) to wait to see if you get the job you thought you were earning. If you sue, you can sue on your own behalf and on behalf of all the other interns who didn't get paid.

Even if you sign a waiver saying you agree not to be paid, it won't hold up if the internship is really a job, so talk to an employment lawyer in your state about it.

Internships can get you college credits, contacts, community service hours for high school, and maybe even a paid job down the line. That's what the good ones are supposed to do for you. Just beware the ones that turn you into slave labor. Before you accept an internship, get a clear understanding of your job duties, whether you'll be paid, and what the employer expects of you.

If you aren't going to be doing something that puts you on your career path, turn it down. If you find out that it wasn't what you expected, get out of there.

Time is money. That's what they say in business. Make sure you get your money's worth out of your internship. If not, wouldn't you rather spend your summer taking classes, getting a paid job, or texting your friends?

If you have a terrific internship, great. I wish you the best. If not, talk to an employment lawyer about your rights.

Can My Employer Enforce A Noncompete When We Get Our Customers Through Bidding?

2013-05-31T05:30:00.000-07:00

Noncompete laws vary from state to state, but whether in a state like Florida where noncompetes can frequently be enforced or in a state that is more employee-friendly, if an employer wants to enforce a noncompetition agreement, it will have to prove a legitimate interest to protect.

In Florida, the statute allowing noncompete agreements also says: “Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.”

Florida’s noncompete statute defines the term “legitimate business interest” to include: (1) trade secrets, (2) valuable confidential business or professional information that does not qualify as a trade secret, (3) substantial relationships with specific prospective or existing customers, clients or patients, (4) customer, patient or client goodwill, and (5) extraordinary or specialized training.

In one Florida case, the court said, “any competition by a former employee may well injure the business of the employer. An employer, however, cannot by contract restrain ordinary competition. In order for an employer to be entitled to protection, there must be special facts present over and above ordinary competition. These special facts must be such that without the covenant not to compete the employee would gain an unfair advantage in future competition with the employer.”

How does this apply if you get your customers through competitive bidding?

Courts have refused to enforce noncompetition agreements in Florida where the employer did not have substantial relationships with specific prospective or existing customers. If the customer is putting jobs out for bid, your employer may have a tough time showing it has substantial relationships with them. If they make purchases with whichever vendor is cheapest or makes the best offer, the courts may refuse to enforce your noncompete agreement. A request for a bid sent out publicly is pretty much like an ad in the yellow pages: anyone can respond, including your employer's competitors.

Where a court may draw the line is if you participated in preparing a bid for your employer, then use that confidential information to prepare your own bid for the same job undercutting them. That’s because you have valuable confidential business information about that bid. However, if you leave your employer and put in bids for jobs you weren’t involved with when you worked there, you may be okay.

Nothing in noncompete law is black and white. It’s pretty much all shades of gray. But employers try to enforce noncompetes that aren’t supported by a legitimate interest all the time. If you think your employer shouldn’t be able to enforce your noncompetition contract because customers are obtained through competitive bidding, talk to an employment lawyer who is familiar with noncompete agreements in your state to discuss your rights.

13 Things Every Teen Needs To Know About Workplace Rights

2013-05-24T05:30:00.000-07:00

School’s out for summer! Or it will be soon, and many teens will start summer jobs or even their very first real job. Yet schools do little, if anything, to prepare teens for the realities of the workplace. I’m always shocked when I encounter teens whose parents drag them to me after they suffer workplace abuse with no idea they have any rights at all.

So, if you’re a teen entering the workplace or thinking of applying for a job, read this. If you’re a parent, friend or relative of a teen who is entering the workforce, please print this and show it to them.

Here are 13 things teens need to know about workplace rights that their school probably didn’t teach them:

1. Minimum Wage: Federal minimum wage is $7.25 per hour. However, there is something called the youth minimum wage, which means that for the first 90 calendar days of any new job you can be paid as little as $4.25 per hour if you are under 20. State minimum wages may be higher. Here in Florida, the minimum wage is $7.79. Tipped employees may be paid a minimum wage of $2.13/hour as long as their wages including tips equal at least the higher of the state and federal minimum wage. State minimum wages for tipped employees vary. In Florida, it’s $4.77/hour. More details about wages can be found here.

2. Hours: If you are under 16, under Federal law your work hours are limited. You can’t work during school hours at all, and you can’t work more than 3 hours on a school day, including Friday; more than 18 hours a week when school is in session; more than 8 hours a day when school is not in session; more than 40 hours a week when school is not in session; and before 7 a.m. or after 7 p.m. on any day, except from June 1st through Labor Day, when you can work until 9 p.m. Federal law doesn’t limit work hours for teens 16 or older, but your state laws may. For instance, Florida law says if you’re under 18 you can’t work during school hours (with exceptions), and that if you’re 16 or 17 you may only work up to 30 hours per week, not before 6:30 a.m. or later than 11 p.m. and for no more than 8 hours a day when school is scheduled the following day, and for no more than 6 consecutive days.

3. Breaks: Federal law doesn’t require any work breaks. However, many states require work breaks, especially for workers under 18. In Florida, workers under 18 are not allowed to work more than 4 consecutive hours without a 30 minute uninterrupted work break. For breaks of more than 20 minutes, employers don’t have to pay. Breaks 20 minutes and under are hours worked that need to be paid.

4. Sexual Harassment: If your boss, coworker, customer, vendor or potential boss is harassing you because of your gender or gender identity, that’s sexual harassment, and it’s illegal. This includes unwanted sexual advances, requests for sexual favors, offensive comments about men or women in general, off-color jokes, touching, and other harassment that is either so severe or so frequent that it alters the terms and conditions of your employment. A single offhand comment may not be sexual harassment, but a single incident that is severe could be. As a minor, you have added protection. Any adult sexually harassing you is probably committing a crime, and could be a sexual predator. It is really important that you read the company’s sexual harassment policy when you start working and write down where you are supposed to report it if it occurs. You don’t have to be afraid, and you should not let yourself become a victim. People you can and probably should report sexual harassment to are your Human Resources department at work and your parents. If you’ve been touched, then you may want to contact the police. If you see someone else being sexually harassed, you should report it. Harassers will keep doing it, and their behavior will get worse, unless an adult stops them.

5. Contracts: In most states, if you’re under 18 you can’t be bound by a contract, including an employment contract. You (or your parents) can void a contract you’ve signed while underage. However, once you turn 18, you probably can’t void it anymore. Employment contracts might have provisions saying you can’t work for a competitor for a year or two, waiving your right to a jury trial, confidentiality obligations, and other important clauses. If you are asked to sign a contract, always read it and keep a copy once you’ve signed. If you don’t understand it, talk to your parents or an employment lawyer in your state about it.

6. Internships: While many teens take unpaid internships for the summer, most employers get internships wrong. If your internship is not a real learning experience for you, then you probably have to be paid for the work you do. An internship is supposed to be training similar to that you would receive in a vocational school. Filing, stuffing envelopes, and answering phones should normally be paid. Internship assignments should build on each other so you develop more skills, similar to the way each chapter of a textbook builds on the other. You should be getting training that benefits you, and you should be getting more benefit than the company. If they can make money off what you're doing, or if you're saving them from having to pay another employee, you probably have to be paid.

7. At-will: If you live anywhere but Montana, your employment is probably at-will, meaning your employer can fire you for any reason or no reason at all (with some exceptions). They can fire you because they’re in a bad mood, because they didn’t like your shirt, or because you lipped off to them like you lip off to your parents. Exceptions that would make a firing illegal include firing due to discrimination, making a worker’s comp claim, and blowing the whistle on illegal activity of the company. If your boss tells you to do something that isn’t illegal (or sexual harassment), then do it. No eye-rolling, back-talk or attitude.

8. Social Media and Cell Phones: You are expected to work during work hours. That means no texting, emailing, calling, tweeting, instagraming, facebooking, downloading, or surfing at work, unless it’s work-related. If you check your texts, emails, or social media on a company computer, cell phone or other device, the company probably has the right to look at it. If you view or send inappropriate pictures, jokes, or videos, you can be fired for doing so. There is very little privacy in the workplace, and you have few rights. Assume you’re being watched at all times at work and you won’t go wrong. Oh, and remember all those party pics and embarrassing photos you posted before you started applying for work? Employers and potential employers can see them. You probably want to check your social media pages and pull down anything you can that might be inappropriate for an employer to see.

9. Human Resources: If your employer is big enough, you probably have someone who is designated as the Human Resources person or a whole department called “Human Resources.” It may be referred to as HR. This is the place to go for information about work rules, to report sexual harassment or discrimination, and you’ll probably have to go there on your first day to fill out a stack of forms. While they can be very helpful if you have questions or concerns, they aren’t your buddies. Human Resources represents your employer, not you. They aren’t your mom or your best friend, so don’t go to them with every petty complaint, confess you did something wrong, or tell them about the wild party you went to over the weekend. Keep it professional.

10. Discrimination: Discrimination against you for being you isn’t illegal. However, discrimination and harassment due to race, sex, sexual identity, national origin, disability, religion, color, pregnancy and genetic information are. In some states, there are more categories of illegal discrimination. For instance, in Florida it’s illegal to discriminate against you because you’re too young or because of marital status. Whether sexual orientation is a protected category depends on your state and local law. No federal law bars sexual orientation discrimination.

11. Bullying: While your school might have zero tolerance for bullying, your workplace may be a bullying free-for-all. No federal or state law exists that prohibits workplace bullying. However, workplace bullies are very much like school bullies: they focus on the weak and the different. If you need to complain about a bully, make sure you do it in a way that’s protected. If the bully is picking on the weak, are they weak because of a disability, pregnancy, or age? If they’re picking on the different, is the difference based on race, national origin, age, or religion? If you report illegal discrimination, the law protects you from retaliation. If you report bullying, no law protects you.

12. Dangerous Work: It is every employer’s duty to maintain a safe workplace. If you think your workplace is unsafe, you can contact the Occupational Safety and Health Administration (OSHA) to report dangerous conditions and get more information. Certain jobs are deemed too hazardous for teens under 18 to do. A plain English description of the 17 jobs considered too dangerous for minors is here. There’s a different list for agricultural work that applies to workers under 16.

13. What Kind Of Work You Can Do: Depending on your age, there may be limits on the type of work you can do. If you are under 14, you can work, but your options are limited. You can deliver newspapers, babysit, act or perform, work as a homeworker gathering evergreens and making evergreen wreaths, or work for a business owned by your parents as long as it’s not mining, manufacturing or one of the occupations designated as hazardous. If you are 14 or 15, you can do things like retail, lifeguarding, running errands, creative work, computer work, clean-up and yard work that doesn’t use dangerous equipment, some food service and other restaurant work, some grocery work, loading and unloading, and even do some work in sawmills and wood shops. We’re talking non-manufacturing and non-hazardous jobs only. If you are 16 or 17, you can do any job that isn’t labeled as hazardous.

The Department of Labor has a website where you can get more information about employment laws that apply to teens. An interactive advisor about federal law may be found here.

Of course, my book Stand Up For Yourself Without Getting Fired can help anyone new to the workplace since it covers how to handle workplace crises and issues from the interview and application, to your first day and that giant stack of papers, to workplace disputes, to promotions, to termination, and even post-termination.

Employment Law Blog Carnival, We Are Family Edition

2013-05-15T07:34:00.000-07:00

It's time for me to host the ever-enlightening Employment Law Blog Carnival, that wonderful monthly collection of the best employment and HR blogs in the blogosphere. Because I hosted this time last year, I'm not doing yet another tribute to Mother's Day. Instead, I looked for a less obvious holiday to celebrate with this new edition of ELBC.

May is National Family Month, so welcome to the We Are Family edition of the Employment Law Blog Carnival.

Lorene Schaefer in Win-Win HR points out that we aren't too different from our monkey relatives, in that we know when we're slighted and don't appreciate it. Her post, Screw You And Your Cucumber Too - Even Monkeys Demand Equal Pay for Equal Work (love the title - can you guess why?) tells employers why they shouldn't monkey around with equal pay.

Dads are entitled to paternity leave, but Randy Enochs in Wisconsin Employment & Labor Law Blog bemoans the fact that Study Shows That Few Dads Take Advantage of Paternity Leave. C'mon dads. Take the time to bond with the new baby.

Every teenager knows you don't give out your social media passwords, especially to family members. So why does NJ Gov. Christie want your password? In NJ Gov. Christie Vetoes Proposed Workplace Social Media Law, Eric B. Meyer in The Employer Handbook explains why the big guy didn't like the law prohibiting NJ employers from asking for employee social media passwords. And really, why wouldn't you want to trust a NJ politician with your passwords?

Families are changing, and so must the law. Heather Bussing, in HR Examiner, tells what to do When An Employee Says I'm Gay. It's a terrific step-by-step how-to for everything from terminology and applicable laws to bathrooms and workplace violence.

Your Canadian relatives have probably headed back home from their winter hideaway in my state by now. We Floridians will miss them so. Stuart Rudner offers the Canadian perspective (which is way, way better for employees) in the Canadian HR Reporter with Employment Agreements Avoid Awkward Hiring Situations. They can help here too, so Stuart's article offers helpful advice to any employer who is preparing an offer letter to a new employee.

Thanksgiving dinner isn't the only time we should be reminded about all the genetic glitches in our families. In The Emplawyerologist, Janette Levey Frisch does two posts on GINA, that very confusing law about genetic information discrimination. In What Does GINA Have To Do With Employment Law Practices, she breaks it down for you and tells you why you should care about this relatively new and misunderstood law. In How Are Employers Faring (In Court) Under GINA, she enlightens us on some recent cases employers won, and a pending case that may "stick" against an employer.

Every family has one black sheep, and sometimes that's because of drug use. Ari Rosenstein in CPE HR's Small Biz HR Blog tells businesses what they can do about drug abuse in the workplace in Substance Abuse and the Drug-Free Workplace Act.

Most of us here in South Florida have family or friends from other countries. It makes living here way more fun and interesting, but Homeland Security is watching those immigrants when you do your hiring. Nilesh Patel of the Mahadev Law Group blog updates us on the new forms employers must use to verify that employees are legal to work in the U.S. in New I-9 Forms.

Our Canadian brothers and sisters prove they can one-up us in something besides hockey. In A Workplace Harassment Case for the Record Books, Dawn Lomer in the iSight blog shares a story of a poisoned workplace atmosphere that Canadians found shockingly illegal (but would probably be just another case of legal workplace bullying here, sad to say). Oh, Canada. Why can't we follow your lead? Except the mayo on fries. You can keep that.

Just in time for National Family Month, Philip Miles in Lawffice Space tells a cautionary tale about working for family, especially if they don't like your sudden spiritual awakening, in 3d. Circuit: Shareholder not "Employee" Under Title VII.

Just like children, you must teach your employees well. Michael Haberman in the HR Observations Blog implores employers to Teach Employees About Sexual Harassment.

Many families have that embarrassing relative who can't stop with the racial slurs at family gatherings. Fortunately, the law protects you if your supervisor spews out racial slurs. In Fitzpatrick on Employment Law, Robert Fitzpatrick tells about a case where one racial slur was enough to create an illegal hostile environment in Racial Slur Sufficient to Support Claim Against Fannie Mae.

Nobody wants to hear Uncle Hal droning on and on about nothing, and your employees don't want to attend trainings that go on and on about nothing either. In Designing an Engaging Workplace Harassment Training, Stephanie Hammerwood in Blogging4Jobs talks about how to get employees to actually pay attention to all those expensive harassment trainings you send them to.

Mario Bordogna in Employment Essentials explains how the DC Circuit is as annoying to NLRB as your siblings are to you in Following Noel Canning, The DC Circuit Again Overturns NLRB Action & Invalidates Notice Posting Requirement.

Every parent knows you need to teach the kids what they should and shouldn't post in social media. One of my favorite verbal sparring partners, Jon Hyman, offers some good advice to employers about social media training in the Ohio Employer Lawyer's Blog in With Social Media, All Of Your Employees are Brand Ambassadors; Train Them Accordingly. Of course, employers can always turn over their social media passwords to NJ Gov. Christie and let him handle it . . .

Family loves to give advice, and so does the NLRB. John Holmquist, in Michigan Employment Law Connection, analyzes NLRB advice on confidentiality in NLRB "Advice" Concerning Employer Investigations.

Do-it-yourself projects can cause lots of family strife. Same if you try to write a do-it-yourself employee handbook. In the DamnedIf blog (love the name), Adam Whitney explains why in Using Standard Form Employee Handbooks; Damned If You Do, Damned If You Don't.

There's really nothing worse for a parent than outliving a child. In the Musings blog, Crystal Spraggins explains why grieving parents should be covered under FMLA in Proposed Amendment to FMLA Would Provide Leave For Grieving Parents.

Health care is important for any family, since there's no quicker way to go bankrupt than to enter a hospital while uninsured. My associate, Ryan Price, did a terrific guest post (I'm not biased at all) right here in my blog, Screw You Guys, I'm Going Home, on how employees will have new protections soon against employers who discriminate based on employee health care decisions in The "New" Discrimination: Retaliation Based on Health Care Rights.

That's all for the We Are Family Edition of the Employment Law Blog Carnival. Join us again next month at a different location for the best employment law blogs, together in one handy place.

The “New” Discrimination: Retaliation Based on Health Care Rights

2013-05-10T05:30:00.000-07:00

Guest post by Ryan Price, Associate Attorney, Donna M. Ballman, P.A., Employee Advocacy Attorneys

If you don’t already know, the Affordable Care Act (“ACA”), a/k/a Obama Care, does not take effect all at once. (I say “if you don’t already know,” because a recent poll shows that 42% of Americans are unaware that Obama Care is currently the law of the land).

Title I of the Act, which is considered one of the most controversial parts of the Act, does not take effect until next year. Once it takes effect, employers may not make employment decisions based on an employee’s health care decisions. Employers will, of course, make decisions that impact employees negatively, because the ACA will increase employers’ costs and responsibilities associated with health care. This is why employees need to be aware of their new rights.

You have probably heard about the many employers who have started cutting employee hours to evade having to comply with Obama Care. If you’re one of them, you’re out of luck. The law doesn’t protect you yet.

Starting on January 1, 2014, an employer may not retaliate against you based upon your health care selections. Specifically, an employer cannot terminate, demote, discipline, intimidate, threaten, deny benefits or promotion, reduce pay or hours, blacklist, or fail to hire an employee based on the fact that the employee:

Provided information relating to any violation of Title I of the ACA, or any act that he or she reasonably believed to be a violation of Title I of the ACA to the employer, the Federal Government, or the attorney general of a state;
Testified, assisted, or participated in a proceeding concerning a violation of Title I of the ACA, or is about to do so;
Objected to or refused to participate in any activity that he or she reasonably believed to be in violation of Title I of the ACA; or
Received a credit under section 36B of the Internal Revenue Code of 1986 or a cost sharing reduction under section 1402 of the ACA.

If an employer retaliates against you for engaging in any of these activities after January 1, 2014, you may file a complaint with the Occupational Health and Safety Administration (“OSHA”). OSHA has a broad range of powers to help employees combat the “evildoer” employers, including the powers of investigation, enforcement, negotiation, settlement, and the ability to award damages. The employee’s first, and critical step, is to file a claim with OSHA within 180 days from the date of retaliation.

Unlike most employment discrimination cases, the standard for proving retaliation in these cases is much more employee-friendly. You only need to demonstrate you had a reasonable belief that the employer was retaliating against you. Further, you will only need to provide evidence that your health care decision was a factor in the retaliation, not the only factor in retaliation. Hopefully, employers will have a much more difficult time defending against these types of discrimination cases. With any luck, this will deter them from violating the ACA in the first place.

Check in with us next year for updates on this law and a breakdown of the inevitable lawsuits to follow its implementation in 2014.

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

2013-05-03T05:30:00.000-07:00

Whether you work in the copy room or in a corner office, you may have been presented with something called a Non-Competition Agreement. Or maybe it was called something sneakier, like a Confidentiality Agreement or Intellectual Property Agreement. Whatever it was called, it said you can't work for a competitor of the company for a year or two after you leave.

If you haven't been forced to sign one yet, beware. They're all the rage with management these days. Physicians, managers, executives, professionals and employees are often given the choice: sign or be fired.

While companies claim all kinds of reasons why they want a non-compete agreement from their employees, there's only one reason they really want it: to prevent a competitor from luring you over to work for them. They want to do everything they can to inhibit and prevent competition. But they will almost never admit that's the real reason.

Why not? Because preventing competition is the one reason that will never, ever justify a non-compete agreement.

While every state has different laws regarding enforceability of noncompetes, most allow them in some form or other. I'll use Florida's as an example, since I'm most familiar with it.

Florida law says:

542.18 Restraint of trade or commerce.—Every contract, combination, or conspiracy in restraint of trade or commerce in this state is unlawful.

This law is similar to the Federal equivalent, the Sherman Antitrust Act, which makes all contracts, combinations, and conspiracies that unreasonably restrain interstate and foreign trade illegal. There are both civil an d criminal pen alties for violations of the Sherman Act and the Florida antitrust law.

The Florida noncompete statute is a very specific exception to the antitrust laws. It says, in part:

542.335 Valid restraints of trade or commerce.—

(1) Notwithstanding s. 542.18 and subsection (2), enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of business, is not prohibited. In any action concerning enforcement of a restrictive covenant:

(a) A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.

(b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.

The statute sets out some things the legislature considers legitimate interests, such as trade secrets, substantial relationships with customers and client goodwill. But preventing competition is not a legitimate interest to protect.

If your employer doesn't have a truly legitimate interest to protect, then they are violating antitrust laws by enforcing or trying to enforce a non-competition agreement. Unless you're the holder of the company's secret recipe, you might want to talk to an employment lawyer in your state about defenses you have to your noncompete obligations before you decide you have no choice but to step out of your industry for a year or two.

Loss Prevention Is Lying To You

2013-04-26T06:13:00.000-07:00

So you're called into the back room. It's a tiny one with no windows and only one door. In the room is someone who identifies himself as being from Loss Prevention. He seems so nice. He tells you he's there to help you save your job. If you only tell him what he wants to hear, you can go back to work.

He's lying! Don't fall for it. Everything you say can and will be held against you. Be careful.

He asks you some questions that make it clear you're being accused of doing something wrong. Maybe it's stealing from the company. Maybe just punching in wrong. Maybe a violation of some policy. He says he's trying to help you, so you tell him everything. Yes, you did use a plastic spoon from the deli and didn't pay for it. Yes, your boss gave you a candy bar and said it was going to be destroyed anyhow, so you took it and ate it. Yes, you used your employee discount to buy something for your best friend. Yes, you forgot to punch in, so you went in and wrote down your best estimate of the time you came in.

That wasn't very careful, was it? You've just confessed to doing something wrong. Maybe even a crime. But he's so nice. He tells you the only way you can save your job is to write down everything he tells you to write.

He's really lying now. Say no! Tell him that you will be glad to write your own statement in your own words, and tell him you'll provide it to him the next day. If he says you need to write what he says or be fired, you're already gone. Don't believe him for one teeny, tiny second.

He tells you to write down what you did, only the way he puts it sure makes it sound worse than it was. He conveniently leaves out how your boss told you to do it or said it was okay. He leaves out how others of, say a different race or sex, do it all the time and suffer no consequences. He has you write down that you understand you violated company policy. Then he tells you to sign it.

Tell him to pound sand. Do not do this. If you do it, you're fired, and possibly arrested.

Let's say you believe this guy and write it all down. What's going to happen next? He grabs it, maybe leaves the room for a couple minutes, then tells you that you're fired. You're escorted out like a criminal.

If you are called into a meeting with Loss Prevention, that's a meeting where you need to be very aware that you are being accused of doing something wrong and you're probably being fired. They are not your friend. When in doubt, tell them you want to leave and speak to an attorney. Yes, they can fire you for leaving, but that's way better than admitting to something you didn't do, or admitting to a crime. You can always write up your response to the accusations calmly after you've had a chance to think straight later and send them to HR.

Stand Up For Yourself Without Getting Fired

2013-04-19T08:48:00.000-07:00

I thought I'd share with you today an interview I did with TJ Walker, who is an excellent media trainer with a regular internet TV show. We talk about my book, employment contracts, noncompete agreements and how you can negotiate a better severance package with your employer.

Ta da! My first video embed. I'm very excited that this worked. Maybe I'll actually figure out one of these days how to embed some videos I did where I actually appear on the video. . .

Employees: Tell Your Representatives To Vote No On These Terrible Laws

2013-04-12T05:30:00.000-07:00

Remember last year's viral campaign ad? The one that said, "Wake the f*#k up?" America woke up, sort of, and then went right back to sleep. So I'm telling everyone who is an employee, and everyone who depends on an employee for their food, clothing and shelter, to wake back up.

Workers are under attack in a major way right now. There are terrible laws pending that will gut the few protections employees have in America. Need I say which party is proposing them? Probably not. Here are some laws that you should tell your legislators to vote no on. Tell them today. I'm serious.

Anti-overtime law: It sounds so sweet. So appealing. Don't be fooled. It's a trick. The Working Families Flexibility Act is as anti-working-family as you can get. The folks trying to push this one say that it will allow employees to "voluntarily" choose to take a comp day instead of being paid time and a half for overtime. These are the same folks that say forcing employees to sign arbitration agreements and jury trial waivers in consideration of continued employment constitutes "voluntary" agreement. Employers will shove "Voluntary Comp Time Agreements" in front of all new employees faster than you can say, "in the pocket of corporate lobbyists." If you want to give up all your overtime, then stay asleep. Otherwise, wake up!

Anti-prevailing wage laws: In Florida, Nevada, Tennessee, Michigan and Missouri, bills are pending that would gut prevailing wage laws. These are laws that require government contractors to pay a higher wage than the state or federal minimum wage in areas with higher costs of living. The bill in Florida would result in a 40% pay cut for some workers. Can you afford a 40% pay cut. No? Then wake up!

Right to work laws: This sounds like justice personified. Everyone should have the right to work, right? Wrong. It's one of those Orwellian names that means the opposite of what it says. It doesn't change the at-will doctrine that exists in 49 states, saying you can be fired for any reason, including your boss's bad mood. Instead, it is intended to gut the unions. Legislation is pending in Congress and in many states. It's bad stuff. Read my article on this topic here.

Anti-paid sick leave: Efforts to deny local governments the right to pass ordinances requiring paid sick leave have popped up all over. A corporate lobbying group is behind it. Watch for these laws in your state, and call and write your legislators to vote no if your state is being targeted.

Pro wage-theft: I wrote a couple weeks ago about the efforts to legalize wage theft in Florida. Here's my post on this.

How idiotic are these laws? Well, they certainly aren't pro-family, are they? I wonder who will buy all the products and visit the travel destinations of the corporations who support anti-employee laws once American employees are bankrupted. I fear we may find out soon enough if we don't stand up and fight while we can.

These are just a few of the many anti-worker laws that have proliferated this year so far. I bet you can think of some more. If you hear of legislation that is pending in your state or in Congress that Americans need to wake up over, let me know in the comments section and I'll be glad to do my part to spread the word.

The NFL Wants You (Unless You're Gay)

2013-04-05T05:30:00.000-07:00

Here's a new post by my associate, Ryan Price. I think he's spot on with this important issue. If the military survived gays in the barracks, the NFL will survive gays in the locker room.

By: Ryan Price

Are you ready for some football?!?! The management of several National Football League (NFL) teams hope you are, unless of course you are homosexual. In a not so shocking news story, several NFL teams questioned draft prospects about their sexual orientation at the annual scouting combine. This story came not long after the Manti Te’o scandal, where the star Notre Dame player’s sexual orientation came into question after it was reported he was romantically involved with a fictitious girlfriend portrayed by a male. Now, Te’o’s draft status is in question because teams are afraid of what they may have to “deal with” down the road if news comes out that Te’o is indeed gay. Why should this ever matter in any employment setting? At least in the NFL, Mike Florio of NBC sports says, “We have to step aside from the rest of reality and walk into the unique industry that is the NFL . . . . Teams want to know whether Manti Te'o is gay. They just want to know. They want to know because in an NFL locker room, it's a different world. It shouldn't be that way." Is it really a different world? Is it really unique? Are there not homophobic and prejudiced people in many work environments?

Earlier this year backup San Francisco 49ers cornerback Chris Culliver stated he would not welcome a gay teammate in his locker room. What would he do? Quit his high paying job as a backup? I don’t think so. In fact, unbeknownst to Culliver, he did play with a gay teammate. His teammate was outed not long after the Culliver controversy following a domestic dispute with his boyfriend. Of course there are gay players in the NFL and all other major American sports. However, most do not come out while they play, but that may be changing soon. The fact of the matter is, whether or not someone is a homosexual does not affect their job performance, unless perhaps they are faced with a hostile work environment. Hostile work environments begin and end with upper management.

When management questions prospective employees on their sexual orientation, they are creating or endorsing such hostile environments. Most people, including Culliver, would not quit their job because their co-worker is gay. However, employers will lose quality employees if they endorse such hostile work environments.

The NFL released a statement following reports that teams were questioning draft prospects about their sexual orientation. They simply stated, “teams are expected to follow applicable federal, state and local employment laws." Further, "It is league policy to neither consider nor inquire about sexual orientation in the hiring process. In addition, there are specific protections in our collective bargaining agreement with the players that prohibit discrimination against any player, including on the basis of sexual orientation." The league vowed that it would “look into the report [about the] scouting combine. Any team or employee that inquires about impermissible subjects or makes an employment decision based on such factors is subject to league discipline."

NFL Players Association executive director DeMaurice Smith commented, "I know that the NFL agrees that these types of questions violate the law, our CBA and player rights.” However, to date, there have been no reports that the league has done anything about these “illegal” hiring practices. Perhaps that is because such interviewing questions are not illegal at all and these statements were simply released for PR purposes.

Are there any protections for employees or potential employees who are questioned about their sexual orientation during the hiring process or after they are hired? Unfortunately, the answer is usually no. There isn’t any federal law protecting employees against sexual orientation discrimination. In our country, it is mostly legal to discriminate and harass on the basis of sexual orientation. (Note: EEOC says that discrimination based on gender identity is illegal sex discrimination, but it remains to be seen whether the courts will see it that way.)

The tide is slowly changing. More and more states, counties, and municipalities are passing laws against these heinous practices. Sexual orientation is irrelevant in the determination of a person’s qualifications for a job. In addition, these companies are sabotaging their own competitive position by filtering out homosexuals. By discriminating against employees based on their sexual orientation, companies are losing out on quality employees and also hurting their brand and image. Companies should hire the best of the best, not the best of the straight.

If you feel you have been discriminated against or harassed based on your sexual orientation you should check your state and local laws to find out what protections and redress you may have. Make sure to save copies of all applications and take notes following your interviews where you believe inappropriate questions were asked. When in doubt, contact your local employee-side employment law attorney.

Florida Companies, Republicans Try to Make Wage Theft Legal, Again

2013-03-29T05:30:00.000-07:00

The Florida Retail Federation hopes the third time's the charm in trying to make wage theft legal. They tried two other times to strike down the wage theft ordinances that are popping up around the state to curtail unscrupulous employers who pocket employee wages for their own use. This time, they've enlisted Florida Republican legislators to help with a truly Orwellian scheme.

Rep. Tom Goodson, a Republican legislator from Titusville, has filed a bill that purports to help employees fight wage theft. The problem is that, unlike county ordinances that provide for double or triple damages against thieving employers, this bill says employees get exactly what they are owed. The county ordinances are (mostly) preempted and counties are prohibited from enacting new ordinances. This is supposed to help employees how exactly?

Let's see. Scumbag Employer, Inc. decides to hire low wage employees and fire them right before their paycheck is due. They don't pay the employees. The employees have to sue. Under this law, the employees have to come out of pocket for several hundred dollars for the filing fee to sue. In the county systems, they file for free. These are folks living paycheck to paycheck. That's probably a week's wages for them. Then they have to face court hearings, court reporter fees, maybe some depositions and discovery. Under the county systems, they have one hearing and get a ruling.

If an employee manages to survive the wait, they might get their wages paid after about a year. Under the county systems, it's probably a few months. So Scumbag Employer, Inc. writes a check after a judgment issues, but in the meantime they got to use the employee's wages all that time. Plus, most employees will give up and not bother. They can't afford to fight. A big win for Scumbag Employer, Inc., which will now have zero incentive to pay employees when wages are due.

I still don't understand how this benefits legitimate businesses. How can they compete with Scumbag Employer, Inc.'s slave labor business model? Instead of supporting the county efforts to shut down these free labor mills, corporations and their organizations are crying foul. Can someone explain this to me?

Oh, sure, employees can still complain to the Department of Labor and try to get help. The problem is, they are overworked and overwhelmed. Florida wage theft is rampant, and employees need laws with real teeth. If employees stealing sodas worth less than $2.00 can be arrested, why shouldn't employers who steal hundreds or thousands of dollars from employees land in prison? At least, they should be penalized.

The Miami Herald came out against this blatant attempt to help wage pirates steal their employees' money. If you aren't convinced by me, read their well-reasoned editorial. Hopefully, Florida legislators will not fall for this sneaky trick to help thieves who are stealing money belonging to their constituents. As to legislators who support this measure, I hope the voters in their districts who are also employees (i.e., most of them) will vote their wallets and send these pro-theft lawmakers packing.

Lies Your Employer Tells You

2013-03-22T05:30:00.000-07:00

Employees, for the most part, believe everything their employer tells them. Most of the time, your employer's interests and yours coincide. You have a job to do, and they want you to do it. But sometimes, those interests collide. Sometimes, you have to take what your employer says with a grain of salt. Other times, they're flat-out lying.

Here are some lies your employer may tell you, and why you shouldn't believe them:

You have to resign: Flat-out lie. Nobody can make you quit your job. They may want you to sign a letter of resignation. That means they probably get out of paying unemployment, and may be able to convince a judge or jury that you left willingly instead of being forced out. Don't resign unless you're getting a severance package or something else that makes it worth it.

Sign this and you can keep your job: Depends on what it is. If you're told by the Risk Management guy who locked you in a room for hours and accused you of stealing that you can keep your job if you admit to stealing, it's a lie. You'll be fired and possibly arrested as soon as you sign. If it's a noncompete agreement, there are states that allow your employer to say, "sign or be fired." My state, Florida, is one of them. Some states don't allow this. Check with an employment lawyer in your state before you give up your right to work for a competitor.

These are never enforced: Horse hockey. Flat-out lie. Why would your employer ask you to sign an agreement that's never enforced? It's because they think it will be enforced. Anyone who tells you otherwise is a liar. Before you sign something you think won't be enforceable, check with an employment lawyer in your state.

We'd never do that: Flat-out lie. If your employer is trying to get you to agree that you give up your copyright to your novel, your rights to the video game you're designing in your spare time, or your LinkedIn contacts, they're lying if they say they would never actually invoke that part of the agreement. They wouldn't ask you to sign it if they didn't intend to enforce it.

We've never enforced this before: That may be true, but it doesn't mean you won't be the first. If they don't intend to enforce a noncompete, an intellectual property agreement or other provision, they shouldn't have a problem deleting it. Otherwise, assume the worst.

We're here to help: HR may tell you they're the employee's friend. They may be able to help you as long as your interests align with the company's, but they exist to protect the company, not you. You may have to report sexual harassment, apply for FMLA leave, or seek disability accommodations through them, but that doesn't make them your friend or ally. Do what you have to do, but put it in writing. Cover yourself. You can bet HR is covering the company.

Those are just some of the lies you may be told at work. Don't be fooled. Can you think of other lies your employers have told you? I'd love to hear about it.

Employees: You Have The Right To Say No

2013-03-15T05:30:00.000-07:00

I'm constantly surprised by the number of employees who come to me after having signed things their employer shoved in front of them, released claims, accepted transfers or demotions, or even admitted to stealing when they didn't. I ask them, "Why didn't you say no?" They look at me like I've turned into a Martian.

Too many employees don't realize that they do have some rights in the workplace. One major right you have is the ability to just say, "no." That's right. You can say no to your employer.

Does that mean you should say no when you get an assignment you don't like? No. Does it mean you should say no when your supervisor tells you to do something outside your job description? Probably not. Most of the time, saying no will get you slapped with discipline or termination for insubordination. But there are times you should respectfully decline.

Here are some situations where you should definitely exercise the power of "no" at work:

Severance: I suggest that employees never sign a severance agreement the day they get it, especially if they're presented with it when terminated. Instead, tell them you want to review it and take it home. Read it carefully. If you don't understand it, take it to an employee-side employment attorney. You should definitely refuse to sign it if you are releasing claims against the company for minimal dollars, if they are inserting a noncompete provision when you don't already have one, or if you are being told you have to release claims when you're already entitled to severance according to an employment agreement or company severance plan.

Termination papers: You're in your termination meeting. They shove a paper in front of you stating that you've been terminated and every reason in the world why you suck. They demand you sign. Don't do it! Why would you? You don't work for them anymore. They can't make you. What's your upside? If you feel like there's no harm, then sign, "As to receipt only." Make sure you aren't agreeing to what they are saying. You aren't thinking straight, so be very careful.

Resignation: "My employer made me quit." I hear that a lot. How did they do that? Did they hold a gun to your head. Unless you are being offered something substantial in exchange for your resignation (or if the gun scenario really occurs), why would you agree to quit? Make them fire you. At least then you'll probably qualify for unemployment. If you resign, they may say you don't qualify. Some people think it looks better on a resume, but who do you really think you're fooling? Nobody resigns in this economy without having a job lined up unless there's a real problem. That gap in your resume is going to be bad, resignation or no. Instead, if they really want your resignation, get something in exchange for it. Use it to negotiate severance, to get out of a noncompete, or to get something else you really want. You may need help here, so now is probably a good time to talk to an attorney rather than jumping into something.

Admission of a crime: If you're put in a room with Risk Management and told to sign a paper saying you stole something if you want to save your job, don't do it! You're admitting to a crime. Never admit to a crime. First of all, you're fired as soon as you sign. Second, the employer may be entitled to sue you for the value of the item plus two or three times its value, plus attorney's fees and costs. It's a trick. Don't fall for it. Practice these words: "I want to speak with an attorney." Repeat as necessary. By the way, they can't make you stay in that room. Tell them you want to leave. Then leave. If they physically stop you, call 911 or scream for help. Seriously. Then go see a criminal defense attorney.

Demotion or pay cut: If you're given a demotion or pay cut you just can't live with, sometimes it's better to say no and apply for unemployment. If you take the job and can't survive on the money, but will be unable to look for a job while you have the job from hell, then you'll have to quit and probably are disqualified from getting unemployment. There are times it's best to say no.

Promotion: If you're offered a promotion that makes you exempt from overtime, doubles your work, decreases your pay, and the last three guys who held the job died at their desk, say no. Get the details before you accept that promotion. Sometimes, overtime pay means you'll make more and have a better life if you stay where you are.

Release: Severance packages usually come with a release of every claim you ever had or might have against the company. I see some companies that have severance plans requiring severance if the employee is laid off that try to get a release even though you're already entitled to severance. I also see people with employment contracts that entitle them to severance being asked to sign a release in order to get it. Say no. Say it again. Run, don't walk, to an employment lawyer in your state. (Better yet, email them). Why on earth would you release discrimination or other claims when you don't have to? If they want that release, make them give you something you want in exchange.

Transfer: You're being asked to transfer across country in the middle of the school year. Your kids are about to take their SATs, your spouse has a job they love. Say no! At the very least, make sure you get a contract, including that they'll pay your moving expenses, help with getting your spouse and kids situated, and guarantee you a minimum amount of severance if you're fired without cause. Better yet, negotiate that you can only be fired for cause and get a specific term of employment for no less than a year. If they won't put enough guarantees and incentives in writing to make it worth your while, take a pass.

Anything illegal: No job is worth going to jail. And guess who they'll throw under the bus when Johnny Law comes a-callin'? It's you. Say no. Better yet, say no in writing. You might want to look at some whistleblower laws to make sure you're doing what you have to do to protect yourself, or talk to an employment attorney about your rights.

Polygraph: The Employee Polygraph Protection Act prohibits most private employers and potential employers from demanding you take a polygraph, and from firing you if you say no. There are exceptions, but they are few. Polygraphs are not admissible in court because they are not reliable. They can say you're lying when you're not. Say no unless you fall within one of the exceptions. If you committed a crime and you are told you have to take it or be fired, take the firing and go see a criminal defense attorney post haste.

These are just some examples of when it's best to exercise the power of "no" at work. I bet you can think of some more. So go ahead. Say no to your employer.

Are Journalists Exempt From Overtime?

2013-03-08T05:30:00.000-08:00

A $660,000 settlement for reporters recently caused both celebration and ire in the journalism community. The celebration was for a victory on behalf of hard-working reporters everywhere. Many reporters work deadly hours for little pay. This decision provides them with some relief, requiring newspapers to pay them overtime for any week they work over 40 hours.

The consternation was caused by the reason for the settlement. The basis for the suit was that journalists are not "creative professionals." This left some reporters shaking their heads. Not creative? But I'm a writer! Of course I'm creative!

Really? Remember what happens to reporters who get too creative. They get unemployed. Forced to resign in disgrace. Publicly outed. Canned. And even sued. Of course, sometimes they get paid big bucks to talk about journalistic ethics.

The Fair Labor Standards Act requires most employers to pay overtime to most employees who work over 40 hours per week. Some employees are exempt, but most are not. One of the exemptions is for "creative professionals." The exemption is quite specific. Being an exempt creative professional involves invention, imagination, originality or talent, as opposed to intelligence, diligence and accuracy. It also requires that the employer not exercise substantial control over the creative professional's work product.

Most print journalists are probably not exempt, because their work is subject to a significant amount of control by their employers. Journalists who perform on radio or TV, who do investigative interviews, who do opinion pieces, editorials or other commentary are probably exempt. On the other hand, a journalist who simply reads press releases over the air is probably not a creative professional.

This is not the first case where journalists were found not to be exempt from overtime. A case in 2010 in California resulted in a $5.2 million verdict in favor of reporters of the Chinese Daily News. Unless the journalist does analysis of a news story, and their work is not subject to editing and other control by the paper, then they are probably exempt.

Here’s what the Department of Labor says about this issue:

Relying upon federal case law, the final regulations clarify that employees of newspapers, magazines, television and other media are not exempt creative professionals if they only collect, organize and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product. For example, reporters who rewrite press releases or who write standard recounts of public information by gathering facts on routine community events are not exempt creative professionals. Reporters whose work products are subject to substantial control by their employer also do not qualify as exempt creative professionals. However, employees may be exempt creative professionals if their primary duty is to perform on the air in radio, television or other electronic media; to conduct investigative interviews; to analyze or interpret public events; to write editorial, opinion columns or other commentary; or to act as a narrator or commentator. Thus, journalists’ duties vary along a spectrum from the nonexempt to the exempt. The less creativity and originality involved in their efforts, and the more control exercised by the employer, the less likely journalists are to be considered exempt. There is no “across the board” exemption for journalists; nor has there ever been. Rather, each determination must be made on a case-by-case basis, as is the case with all job classifications. The majority of journalists, who simply collect and organize public information, or do not contribute a unique or creative interpretation or analysis, are not likely to be exempt.

If newspapers want to have exempt employees, maybe they should cut back on that editorial pen and let reporters choose the stories they want to cover. Since that will probably never happen, newspapers should be ready to pay overtime to their hard-working reporters.

Guest Post: Are Workplace Bullies Violating Criminal Stalking Laws?

2013-03-01T05:30:00.000-08:00

Today we have a special treat. My associate, Ryan Price, has written a guest post. Ryan is probably smarter than me, since he graduated at the top of his law school class. If you read his bio below, you'll see he has a quite interesting background. This is his very first blog post. I think he did a pretty nice job. I hope he'll share some more insights with us here in the upcoming months. Here's his post, about a creative solution to the very common problem of workplace bullying:

Are Workplace Bullies Violating Criminal Stalking Laws?

by: Ryan Price, Esq.

Does this sound familiar?: “My co-worker follows me around all day, every day, tormenting me, and waiting for me to make a mistake so she can report me to a supervisor?” Or, how about this?: “My boss berates me all day, every day. He just tells me I am worthless. I am a disgrace to the company. I should never have been hired. If it were up to him, he would prefer to see me on the streets.” Maybe you have stack of emails and attachments from a co-worker. The photos are of grotesque images that the co-worker sends to you on a daily basis because she knows you have a weak stomach and cannot handle the images.

This kind of mistreatment frequently happens at work with supervisors or coworkers. If I heard this story, I might say to you, “Yeah, you are right! That guy is a jerk! That guy is obnoxious! She is annoying! She is a BULLY!!” However, I would also tell you that no state has passed any anti-bullying laws, so you may end up with no remedy. Unless this bullying also amounts to sexual harassment, racial harassment, or other discriminatory harassment, there is likely no civil remedy for an employee facing workplace bullying. You may file a written complaint with H.R. or inform your supervisor, but you are not protected against retaliation if you do this. Chances are, this course of action will lead nowhere. You may have two possible choices: (1) suck it up or (2) start looking for a new job.

However, there may be recourse for a victim of workplace bullying, as long as the bullies’ behavior is criminally annoying, obnoxious, or rude. It just may not be recourse that a civil attorney can help out with. Why? Because it involves filing a criminal complaint, not a lawsuit.

So, if a co-worker or boss’s bullying rises to the level of criminality, you may be able to seek an injunction against their behavior by using your state’s criminal stalking statute. And, I am not talking about your friend Tony who is “criminally” annoying the way he always one-ups everyone. (“Hey Tony, I wrote my first blog post today!” “That’s nice Ryan! I have 50,000 followers on my blog site and am working on my third novel, entitled, ‘I am Just a Little More Awesome than You Are.’”). I am talking about those people who fit into the descriptions above, which behavior falls squarely within your state’s criminal stalking statute.

The Florida stalking statute provides, “A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree.” Sound familiar? If so, your workplace bully may be a stalker.

A violation of this statute may result in a definite term of imprisonment not exceeding 1 year. To harass someone under this statute requires “a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” And yes, your boss harassing you over your work is probably a “legitimate purpose,” no matter how petty you think she’s being.

In Florida, this statute has been successfully used by employers against disgruntled employees after disputes concerning unpaid wages escalated. It seems logical that this statute could be used by employees for protection against workplace bullies, including co-workers and supervisors. I was not able to find any case law where an employee did use the law to handle a workplace bully, but may be a last resort possibility for an employee whose daily existence at work has become dreadful. If your employer retaliates against youfor seeking a stalking injunction or filing criminal charges against a co-worker, then you could have a potential whistleblower retaliation claim in a civil lawsuit. If that happens, it may be time to talk to an employment lawyer in your state.

The Florida statute is very broad and could potentially provide a Florida bullying victims with some recourse against workplace bullies, allowing them to keep their jobs without having to suck it up and deal with bullies on a daily basis. Indeed, stalking, even aggravated stalking, can encompass acts that, in and of themselves, might fall short of prosecutable conduct. This means, “prohibited behavior under the statute encompasses both non-criminal and criminal behavior.” If you’re a bullying victim, it may be worth checking out your state stalking law.

Stalking is very real and very scary, which is why every state has stalking laws on the books. Although the first anti-stalking law was not enacted until 1990, the reality of stalking in the workplace is not a new concept. Almost a decade ago, attorney Janet Goldberg wrote, “An employee who fears a potential attack by a co-worker can use these laws to restrain that individual. For example, “stalking” laws in some states make it a criminal offense to engage in conduct that threatens another person’s safety.” Ms. Goldberg’s article was addressing workplace violence. However, the stalking laws discussed above are not limited to situations where a threat of violence is involved. In Florida, you do not need to fear a potential attack by the bully to be the victim of stalking. If there is such a credible threat, the bully could be charged with aggravated stalking, a felony. In fact, even aggravated stalking may be based on threats that fall short of an assault.

Some of the most unjust and frustrating circumstances are faced by employees who are simply trying to go to work without being harassed everyday by workplace bullies. I would love to hear from any lawyers or employees who have either used stalking laws in the employment context or who have defended against such a suit or criminal case. I would also like to hear about other strategies used by attorneys to assist clients in dealing with workplace bullies. The sad fact is, we need clear anti-bullying laws if we want to eradicate the workplace bully.

About the author:

Ryan Price is an associate of the Florida law firm, Donna M. Ballman, P.A. Mr. Price graduated from the University of Vermont with a Bachelor of Science degree in Business Administration. Upon graduation, Mr. Price worked for an importer/exporter in Manhattan as a pricing production coordinator and financial analyst. Thereafter, Mr. Price moved to Costa Rica where he led volunteer groups in conservation and education projects in the rainforest and underprivileged communities.

Upon return from Costa Rica, Mr. Price relocated to Florida where he began his legal studies at St. Thomas University School of Law. Mr. Price received several outstanding student awards and made the Dean’s List every semester. Mr. Price received the Dean’s Merit Scholarship and also scholarships from independent sources for his academic achievements.

During law school, Mr. Price completed several clerkships and internships. He worked with a small private firm, the South Florida Water Management District, and the Everglades Law Center. In addition, Mr. Price served on the Executive Board of the St. Thomas Law Review as Senior Articles Editor.

In 2011, Mr. Price graduated as Valedictorian and summa cum laude from St. Thomas University School of Law. Mr. Price began his career as an attorney practicing civil litigation in both Federal and State courts. He represented plaintiffs, defendants, and third-parties in many areas of the law, including employment discrimination, contract disputes, non-compete agreements, employment agreements, wrongful termination, and inadequate compensation.

You Have The Right To Discuss Salary With Coworkers

2013-02-15T05:30:00.000-08:00

Many people who are trying to figure out whether they've been the victim of discrimination miss an obvious way to find out how much coworkers are making: asking them. Some employers try to prevent this by putting in handbooks or contracts a provision prohibiting salary discussions among coworkers. Those employers are, for the most part, breaking the law.

If you work for a non-government employer and aren't a supervisor or management, you likely have the absolute right to discuss your salary, benefits and other working conditions with your coworkers.

The National Labor Relations Act (NLRA) protects employees who engage in concerted activity to improve working conditions. That means you can discuss pay and benefits with coworkers and the employer is not allowed to punish you for doing so.

Before you defy management directives and start discreetly asking trusted coworkers to exchange salary information, you should make sure you aren't exempt from this law. While the vast majority of non-government employers are covered, some are exempt. Independent contractors and supervisors are exempt. But many people classified as contractors are misclassified and are really employees. You may be protected even if you think you aren't.

Even if you're allowed by law to discuss pay with coworkers, I still suggest using some sense. Some people are offended if you ask about money. Make sure you trust the person and have a good idea that they won't mind. If it's someone you suspect is also underpaid, you might convince them to talk to you with some evidence, such as telling them that you know John Smith and Jim Doe make more than you for the same work, but you are wondering if other women in the company are also underpaid for the same work. Another time to ask is when someone is leaving. They may mind less if they're on their way out the door.

What you don't want to do is sneak into HR and look at their payroll records, hack the payroll company computers, or put a tape recorder in someone's office hoping to catch them in salary discussions. Those tactics are illegal. You not only will be fired if you're caught - you might go to jail.

If your company has an illegal policy or contract saying you can't discuss salary with coworkers, one option is to report them to the NLRB. Cases saying these prohibitions are illegal have been around way before the current issue arose about the current NLRB's makeup, so the fact that these policies are illegal won't change, no matter how optimistic employer organizations get. Even if you haven't been fired based on an illegal policy, you can file a complaint and NLRB may force your employer to change their evil ways.

If you think you're the victim of discrimination, one way to prove it is to prove you're paid less than others in a different category than you. Don't write off the easiest way to find out if you're paid unfairly. Go ahead. Take a coworker to lunch. Ask. You might be surprised by what you find out.

NLRB Decision Means Delays, Not Employer Free-For-All

2013-02-08T05:30:00.000-08:00

There has been much crowing and breaking-out-of-champagne on the management side over the recent case saying President Obama's recess appointments to the NLRB were unconstitutional.

The case applies to that one NLRB matter and that one only. Other NLRB cases that have pending appeals may get similar decisions, or they may not. Right now, NLRB is proceeding as normal, until a court rules otherwise.The Supreme Court has declined to take the issue up, so the decision won't have a wide-ranging impact yet. Business lobbyists want employers to appeal all NLRB decisions they don't like so they can benefit from the decision.

Employers may now think it's safe to fire employees for objecting to working conditions on Facebook and other social media. They may also get excited about the possibility that some of the other recent decisions on key issues may disappear. They're wrong.

As to the Facebook firing cases, the first one came down in 2011. That means the case is likely completely unaffected by the court decision, as is the NLRB’s stance that employees cannot be fired for discussing working conditions on Facebook and in other social media.

Companies who decide the law no longer applies to them do so at their own risk. The President will eventually appoint NLRB members successfully. In the meantime, the agency itself continues its investigation and decision-making process. Some recent decisions about confidentiality of investigations, at-will policies and arbitration agreements might be affected, but they might not.

What it really means is that Republican Senators who hold up the President's appointments to the Board for spite will cause cases to pile up. Staff at NLRB are still busy processing cases. Those that move up to the Board level will find that no hearings can be held. Our tax dollars are being used to backlog an agency that usually moves quickly, and whose decisions benefit both employers and employees, depending on the case. If a union engages in unfair practices, how will aggrieved employers get relief under this new genius gridlock plan? They won't, that's how. When the Board is finally back up to quorum, they'll have to work with rocket speed to catch up, meaning they'll need extra staff to help them process cases.

In the meantime, employers shouldn't celebrate too much. The Board will be back.

Top 6 Reasons Why Discrimination Laws Are Good For White Guys

2013-02-01T11:25:00.000-08:00

I just finished an interesting online live chat with AOL Jobs about gay rights in the workplace. One of the participants espoused the view that all discrimination laws are bad and that corporations shouldn't have to spend their money defending against discrimination claims. I was the only old lady on the chat, that is, the only person old enough to remember the bad old days when discrimination was legal. Trust me. We don't want to go back there.

I hear white guys complain about anti-discrimination laws all the time, and I understand that it's tough to have the top-banana spot taken away, especially when it wasn't based on anything like merit. But if you think about it, discrimination laws benefit everyone, including white guys.

Here are the top 6 ways I can think of that white guys benefit from discrimination laws:

1. Short guys: Anyone who remembers the bad old days remembers that cops had to be big burly guys. When women joined police forces, height requirements were used to exclude them disproportionately. Disparate impact laws threw out height requirements, and replaced them with physical agility tests. Who benefited besides women? Short guys. Suddenly, height discrimination went out the window, and even smaller guys can be cops.

2. Skinny guys: Along with those old height requirements were minimum weight requirements. Only burly white guys could be cops, firefighters, and some other professions that required physical work. Now, skinny guys can prove they can do the job through physical agility tests.

3. Single guys: Back when white guys ruled, there was lots of pressure on men to get married. Single guys were looked on with suspicion. Were they gay? Guys with families to support were favored in many ways over single guys. Now, it's okay to be single.

4. Jewish, Muslim and Atheist guys: When white guys ruled, it was really only Christian white guys who got the big offices. Discrimination against Jewish, Muslim and other religions was rampant and legal. Now, even white guys can be whatever religion they want, or no religion at all. While there's still discrimination, it's illegal.

5. White as Minority: There are cities and counties in the U.S. with white minority populations. Payback's a bitch, but it's illegal. Imagine how bad the payback would be when the tide turned if race and national origin discrimination were not illegal. As more cities become majority black, Hispanic or Asian, white guys should be glad for the legal protections.

6. Less Financial Pressure: In the old days of legal discrimination, women had to stay home, so all the financial pressure was on men to support their families. Now, women can share the financial load. Less pressure equals better health and better chances of surviving a financial crisis.

I'm sure there are other ways white guys benefit from anti-discrimination laws. Can you think of any I've left out? I'd love to hear them. Personally, I'm glad the bad old days are gone. More people in the workforce means we are more competitive, have smarter people at the top, and are more likely to make the innovations that keep our country great. We still don't have a person to waste in this country. I hope we get to the point where all employees are judged on their abilities alone.

The "She Asked For It" Defense Strikes Again

2013-01-25T06:57:00.000-08:00

In another example of why women hesitate to bring sexual harassment claims, a judge has ordered twenty two women who are bringing a sexual harassment claim to turn over their cell phones and social networking passwords to attorneys for their former employers. The judge will allow these attorneys to examine their chats, text messages, tweets, private messages, pictures, posts and emails.

The former employer claims that they need the information to explore whether the women used the words they claim offended them, their romantic lives, and other information to determine whether they were indeed subjected to unwelcome sexual harassment and, if so, the extent of their emotional damage.

The big smoking gun the employer pointed to was a shirt one of the women wore in a photo with the word, "Cu**" on it. Apparently, if you wear such a shirt on your own time, no matter your intent, you have extended an open invitation to all your supervisors and male coworkers to sexually harass you. Sort of like the argument that African-American employees who use the n-word can't be offended when someone else uses it toward them.

The judge said this about his reasoning: "I view this content logically as though each class member had a file folder titled “Everything About Me,” which they have voluntarily shared with others. If there are documents in this folder that contain information that is relevant or may lead to the discovery of admissible evidence relating to this lawsuit, the presumption is that it should be produced."

This is a case where twenty-two women say they were propositioned, fondled, and subjected to unwanted comments by their manager. Twenty-two! That means this employer is claiming twenty-two women are all making up the same story. That twenty-two women asked for this behavior.

Which brings me back to the "she asked for it" defense. Too many judges in sexual harassment cases allow the harasser to claim that a woman's use of four-letter words, her clothing, or her sex life with others mean that she wasn't offended when she was groped, insulted or grabbed by her supervisor. If a woman isn't a delicate flower, blushing at the merest hint of foul language or the mention of sex, she's apparently an open target.

So, ladies, open your diaries, love letters, private email, intimate discussions with friends and anything else in your life. If you are bringing a sexual harassment claim, your harasser can see it all so they can claim you asked for it.

I have to say this to management-side employment lawyers who use this tactic to humiliate sexual harassment victims: "Have you no sense of decency, sir? At long last, have you left no sense of decency?"

Weird Or Not, Beliefs Are Protected Religion

2013-01-18T05:30:00.000-08:00

A recent case where a vegan claimed she was protected from religious discrimination has caused some wailing and gnashing of teeth on the management side of my profession. The court said this about her claims:

[I]t is plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.... Accordingly, at this early stage of the litigation, the Court finds it inappropriate to dismiss Plaintiff's claims for religious discrimination based on her adherence to veganism.

I, on the other hand, was not surprised. Indeed, I predicted this in my book, Stand Up For Yourself Without Getting Fired:

Sincerely held beliefs: You don’t need to be part of an organized religion to be protected against religious discrimination. Atheists are protected. So are “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” It doesn’t matter that the beliefs are illogical or even that they aren’t held by many people. For instance, a person who practices veganism for moral reasons may be protected against religious discrimination, where a person who practices veganism for health or environmental reasons may not be protected.

It doesn't matter if you agree with the religious belief or think it's weird. Whether you dislike dreadlocks, you must respect a Rastafarian's right to wear them. Do you think a Jehovah's Witness ought to be a good sport and participate in birthday celebrations? Stop pushing. You can't do it. Think a Sikh's long hair should be cut? It doesn't matter what you think. It matters what the person who holds the belief thinks. If their belief is sincerely held, you must respect it in the workplace. No mocking or harassment allowed.

What about atheists? They don't have a religion, do they? Wrong. Atheists are one of the most maligned groups in our society, right up there with the overweight. Politicians openly blame them for tragedies that have nothing to do with them. Some openly call them evil or immoral. There are even state laws that openly discriminate against atheists. However, their sincerely held beliefs are protected under Title VII's religious discrimination provisions. That means an atheist must be excused from prayer services and other religious displays at work. You can't refuse to hire them because you assume all atheists are unethical (as my daughter's teacher announced in class the other day) or because they don't attend your church.

If you think about it, even mainstream religions have some practices that may seem weird to outsiders. Catholics engage in ritual cannibalism when they do communion. The Bible that most Christian and Jewish believers follow says offenses like adultery, not honoring the sabbath, and being a bad son are subject to mandatory death penalty.

So who's to say what's weird or whose beliefs are silly? To an atheist, a religious practice might be superstition. To others, it might be blasphemy. To some, it may be their most sincerely held belief.

Hindu, Muslim, Scientologist, Seventh-Day Adventist, Pagan, Wiccan, Satanist, and believers in Greek Mythology are all protected under Title VII.

So let's stop judging each other's beliefs and get back to work.

Broward Joins Miami-Dade In Protecting Employees Against Wage Theft

2013-01-11T05:30:00.000-08:00

Miami-Dade County's wage theft ordinance has been in effect since 2010. It was the first such ordinance in the nation. This month, Broward County finally joins them in the fight against unscrupulous employers who steal employee wages. Alachua County is currently considering a similar ordinance.

The sad fact is that most states let employers get away with allowing people to work, then failing to pay them. Why businesses tend to fight these laws like cornered rats is beyond me. Isn't using free labor the very definition of an unfair trade practice? How can legitimate employers fairly compete with unscrupulous companies who use slave labor?

Not that the Miami-Dade wage theft system is perfect. I wrote previously about some problems we had with hearings. We have one case we won months ago, yet haven't received our judgment. Several other cases have languished for months without being set for hearing. Still, it's probably better than trying to file a lawsuit in a system that's glutted with foreclosures.

Rant over. There are some key differences between the two ordinances. Here's the scoop:

Wages due date: Both counties now make wages due within 14 days after services were performed unless the employer has established a consistent pay schedule that is different.

Demand letter: Broward County requires a demand letter within 60 days of the date the wages were due giving the amount of wages due, the actual or estimated work dates and hours, and notifying the employer the wages are past due. Dade has no such requirement.

Deadline for claim: Both counties have deadlines of one year from the last date the employee performed work for the employer that wasn't paid.

Supporting documentation: Dade's ordinance requires all supporting documentation to be attached to the complaint. Broward's just requires the complainant to set forth the facts with sufficient specificity to allow the respondent and the County to understand the basis for the claim.

Service of complaint: Dade serves the complaint by certified mail. Broward will apparently use the Sheriff or a process server.

Hearing notice: Dade's ordinance says notices are served by certified mail, which is a real problem. By the time of the hearing, the receipts don't arrive and the employees waste a day they had to take off from work before they find out the hearing is canceled. Dade also says that Fla. R. Civ. P. 1.080 can be used for service. That rule used to say service was by snail mail, but now it's by email. Yet Dade doesn't use that method, instead making taxpayers incur the expense of additional certified mail costs. Broward's refers to the Florida Rules of Civil Procedure for service without specifying which rule. Presumably, regular first class mail, or even better, email, will be used for notices once the employer is properly served with the complaint.

Answer: Answers are due in both counties within 20 days after service of the complaint.

Hearing officer appointed: In Dade, a hearing is supposed to be appointed within 15 days after the complaint is served. In Broward, it's 30 days. Neither county has a deadline by which the hearing must be conducted. That's a giant flaw.

Conciliation: Both ordinances encourage the parties to reach an agreement and say the counties will work to help resolve the dispute. The reality in Dade has been, so far, that conciliation pretty much concists of, "Hello, employer. Do you want to pay these wages? No? Ok." Hopefully a more formal mediation program will be set up to try to get the parties to settle more quickly and reduce backlog.

Lawsuit: Both counties prohibit aggrieved employees from suing for their wages. If they do, the counties will dismiss their wage theft complaints. That just sucks, especially where the wage theft program is so bogged down.

Damages: In Dade, it's three times the amount of wages stolen. In Broward, it's twice the amount.

Attorney's fees: In Dade, employees cannot recover their attorney's fees incurred. In Broward, they can. However, Broward also has a provision that employees bringing frivolous claims will have to pay administrative fees and the attorney's fees and costs of the employer.

Employee defined: An employee in both counties is anyone who performs work within the geographic boundaries of the county while being employed by an employer. It doesn't include bona fide independent contractors, but most people classified as contractors are misclassified and should be considered employees.

Employer defined: Both counties exclude the U.S. government, the State of Florida, and any Indian Tribe. Dade excludes itself, but Broward doesn't.

Hopefully, Broward will learn from Dade's mistakes and administrate their program a little better. Dade still needs more resources and a more efficient system in order to have their program become a model for the nation.

Congratulations to both Miami-Dade and Broward for having the guts to stand up to thieving employers!

And The Crystal Ball Says: My Predictions for 2013 Employment Law

2013-01-04T05:30:00.000-08:00

Last year I did pretty well with my predictions. Here’s what I see on the horizon for 2013.

1. Even More Active NLRB

With zero Republicans left, the possibility of gridlock is nil. We’ve seen a very active NLRB on issues involving non-union workplaces. Look for stepped up activity against employers on social media restrictions, attempts to suppress worker concerted activities and lopsided agreements. NLRB will do what other government agencies have punted on: help employees.

2. EEOC Will Start Stepping Up

Not to be outdone by NLRB, EEOC will become more active as well. This year saw the beginnings of activity to address gay rights and retaliatory confidentiality agreements. Look for more activity that actually helps employees, and for an agency that no longer accepts employer position statements as gospel.

3. Marijuana Litigation

With flat-out legalization in two states and legal medical marijuana in many more, we’ll start to see litigation on the employment-protection provisions built into many of these new state statutes. The fact that it’s still illegal under federal law will make things complicated. Will the feds finally give up and recognize state’s rights? Probably not this year, but definitely within the next 5 years.

4. Gay Rights Expansion

Speaking of states’ rights, with gay marriage spreading across the country, the feds can’t be far behind. We probably won’t see Congress adding sexual orientation to Title VII or gay spouses to FMLA this year, but I think it’s going to happen this Presidential term.

5. Strikes

All of a sudden, workers are waking up. They’ve realized they don’t have to put up with crappy working conditions in silence. We’ll see more non-unionized workforces going on strike. We’ll also see some Wal-Mart and fast food corporations retaliating for the strikes that have happened last year and which will continue in 2013. Fortunately, I think NLRB will take action to slap employers for illegal retaliation.

6. Federal Courts Become (Slightly) Less Anti-Employee

While federal courts have long been a sad place for employees, especially here in the 11th Circuit, some recent cases indicate that the times may be changing. Look for some rulings in favor of employees for a change. All it will take is a couple of Supreme Court appointments over the next four years and it will be a different world for employees. This year, the Supremes will, for the most part, continue to bend toward corporate interests instead of the working people.

7. Arbitration Under Fire

Although arbitration clauses have been the darling of employers, who are sneaking them into applications, handbooks and that giant stack of papers employees sign on their first day, look for some attacks this year coming from government agencies. The courts tend to love arbitration because it clears their dockets, so expect little help from those in robes. Watch for NLRB, EEOC, FTC and maybe even DOJ to subject arbitration agreements to extra scrutiny. It’s doubtful Congress will take action this year, but if they do something to help consumers, employees will probably be able to benefit.

8. Bullies Will Slide

Although states periodically consider anti-bullying laws, they always fail to pass. It’s likely 2013 will be no different. Watch for more consciousness-raising but no legal action this year.

9. Privacy Protections

More state legislatures will pass laws against demanding employee social media passwords and other egregious employer snooping. Congress might even do something to stop some of the worse invasions of privacy, but I won’t hold my breath. They’re too busy with gridlock to actually do anything that might protect their constituents.

10. Background Check Restrictions

More states will place limitations on background checks and what background information employers can use against applicants. Watch for laws limiting use of criminal records, unemployment, and credit history against applicants. EEOC will continue looking for disparate impact of background check information against women and minorities. It’s only a matter of time, say 2013 or 2014, before we see a case arguing that use of criminal records has a disparate impact on men, but it won’t come from EEOC.

One thing for sure: 2013 will be a hot year for employment law issues. Stay tuned here and on my Twitter feed for the latest updates.

My Employment Law Predictions For 2012 (Mostly) Come True

2012-12-28T05:30:00.000-08:00

I must be psychic. You may remember my predictions for 2012, done at the end of 2011. I went back over them to see how I did. I was (mostly) right. Here's what I predicted and what actually happened. Next week, I'll make my predictions for 2013.

Prediction 1: Lots of USERRA litigation.

Sure enough, employers didn't want Johnny to march home and get their old jobs back. Returning service members alleged that employers made up charges against them when they got home or simply fired them outright due to their service. An employer raised the ire of the Department of Justice when they reduced military members' pension benefits. In another, DOJ sued when an employer unjustly terminated a service member a year after they returned to work. In a case of first impression, a court found that a release in a severance agreement did not prevent a service member from suing under USERRA. Employers paid out this year when they were caught firing employees for their service.

Prediction 2: Attempts to weaken sexual harassment protections

What I didn't predict was that it would be the military leading the way in failing female workers. Military service members were sexually assaulted and sexually harassed in droves, yet the Department of Defense did little to help female service members. We saw a case where an employer was allowed to fire a female employee because he found her "irresistible" and fired her so he wouldn't sexually harass her. Apparently his wife found inappropriate texts he'd sent her and demanded the employee be fired. And this wasn't sexual harassment? Other cases found not to be sexual harassment: butt slapping by supervisor and making homosexual slurs and using antibacterial wipes around a straight male employee. Courts also made it more difficult to bring class actions for widespread sexual harassment. Sexual harassment victims were ordered to turn over cell phones and social media passwords to support employers' "she asked for it" defensess. In all, a terrible year for sexual harassment victims.

Prediction 3: Courts will weaken anti-retaliation laws

In one court ruling, a Sarbanes-Oxley whistleblower had his claim dismissed when he failed to "approximate the basic elements of a claim of securities fraud." No law degree? No whistleblower claim. Another court found that whistleblowing overseas against a U.S company doesn't count. A U.S. citizen who blew the whistle on illegal activity of a government contractor and who was tortured by U.S. military for his trouble had no remedy according to a federal court.

On the other hand, the President and Congress have enhanced whistleblower protections. The President issued a directive protecting intelligence agency whistleblowers for the first time. Congress passed the Whistleblower Protection Enhancement Act to try to plug some court-created loopholes and expand whistleblower protections.

Prediction 4: No state will pass an anti-bullying law

None did

Prediction 5: The Civil Rights Tax Relief Act will languish again

It did.

Prediction 6: More states will pass laws protecting the unemployed against discrimination

At least 17 states considered legislation to protect the unemployed against discrimination due to the fact that they are jobless. Only two states and Washington DC managed to pass and get laws signed. California passed a law that was vetoed. New Jersey passed a law in 2011. Oregon followed at the beginning of 2012, and no state has passed any such law since. President Obama has proposed the American Jobs Act, which includes a prohibition against discriminating against the unemployed. It didn't pass, at least not in 2012.

Prediction 7: Wage theft laws will start to spread

It's moving glacially, but wage theft laws are starting to happen. Miami-Dade County was the first county in the nation to pass such a law. This year, Broward County, just north of there, passed its own ordinance, to go into effect in 2013. Palm Beach County punted and failed to pass one. A recent study showed that 44 of 50 states have utterly inadequate protections in place to protect employees who are victims of stolen wages. Yet efforts in Houston, Texas; Alachua County, Florida; Shelby County, Tennessee; and the State of New Jersey have so far not passed.

Prediction 8: Employers will gain more rights to enforce noncompetes against employees; antitrust laws will be used to attack noncompetes

Sure enough, employers have continued to use noncompetes to bully employees into staying in terrible jobs, and into bankruptcy if they dare leave. Fortunately, antitrust laws offer a ray of hope. The Department of Justice is pursuing employers who agree not to hire each others' employees for violating antitrust laws. They cite studies showing these agreements suppress wages. Can other noncompete agreements be far behind?

Prediction 9: Confidentiality and trade secret agreements will be used to prevent employees from working for competitors

Employers are using trade secrets laws, confidentiality agreements, and intellectual property agreements to make grabs at everything employees think of or do while they're working for the company, from Twitter accounts to books to doll designs. Plus, courts are continuing to use the "inevitable disclosure" doctrine to find noncompete obligations even where no noncompete agreement exists.

Prediction 10: Employees will wake up and start fighting for their rights

This year gave me a glimmer of hope that American workers would, as Samuel L. Jackson so eloquently put it, "wake the f*#! up." [Note: please don't click that link at work!] We saw nonunion workers at places like Wal-Mart striking. Later, fast food employees followed suit and rose up against abusive employer practices. We also saw a national election where voters said no to putting a so-called "job-creator" in office, despite bullying tactics by his CEO friends who threatened their employees if they reelected the President.

Next week: my predictions for 2013.

Time To Repeal Anti-Communist Discrimination Laws?

2012-12-21T05:30:00.000-08:00

Is there any group more irrelevant in America today than communists? Back when Joe McCarthy was in his heyday smoking out suspected communists and socialists, our major rival on the international arena was the Soviet Union. Now that the Berlin Wall is down, the USSR is no more, and the Communist Party in the U.S. has about zero influence on U.S. politics, it might just be time to get rid of some antiquated anti-Communist laws.

I bet you didn't know that Title VII, the law that prohibits discrimination in the workplace, contains this clause:

(f) Members of Communist Party or Communist-action or Communist-front organizations
As used in this subchapter, the phrase “unlawful employment practice” shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor-management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950 [50 U.S.C. 781 et seq.].

Wait? Any action? So Title VII doesn't prohibit sexual harassment against a Communist? It doesn't prohibit race or national origin discrimination against a Communist? That's what the law says, although I haven't seen it used as a defense this way.

WTH? Why hasn't anyone gotten this silly remnant of the Cold War off the books? Well, the State of Nevada is leading the way. The Nevada legislature is taking steps to remove a similar provision from Nevada law.

I did a quick search and found similar provisions in Nebraska, Pennsylvania and Arizona. I'm sure there are more.

Surely the repeal of a law allowing discrimination based on political beliefs is something we can all agree on. It's time to move on past the Cold War and into the new millennium. Let's hear it for Nevada for leading the way.