Screw You Guys, I'm Going Home

Are Federal Judges Hostile To Employment Plaintiffs? Report Says Yes

2012-03-02T05:30:00.019-08:00

The National Employment Lawyers Association (NELA), which is the employee-side lawyers’ organization, just released a study called Judicial Hostility to Workers’ Rights: The Case for Professional Diversity on the Federal Bench. The statistics confirm what every employment law practitioner knows already: federal courts are mostly a terrible place for employees:

• From 1979-2006, the plaintiff win rate for employment cases (15 percent) was lower than non-employment cases (51 percent).

• For cases going to trial, employment discrimination plaintiffs (28.47 percent) won less often than other plaintiffs (44.94 percent).

• Employees succeeded on appeal only 9 percent of the time, while employers won 41 percent of appeals.

Judicial Hostility, p. 4.

The report points to the lack of federal judges who, as lawyers, actually represented, you know, people. I don’t mean corporations, which are now considered by the same federal bench to be people. I mean living, breathing human beings.

Employees face all kinds of judge-created obstacles. The report cites a few (my colleagues and I could probably name a dozen more):

• “Stray Remarks” – Allows judges to disregard discriminatory statements made by supervisors or other employees as merely “stray remarks,” and therefore not evidence of discrimination

• “Business Judgment” – Permits judges to defer to an employer’s “business judgment” instead of carefully examining whether an asserted justification for an adverse employment action was pretext for unlawful discrimination. Some courts have gone so far as to accept the defendant’s asserted reasons for the adverse employment action being challenged, even when the employer’s explanation is harsh or unreasonable.

• “Self-Serving Witness” – Enables judges to presume the credibility of testimony from defense witnesses with a vested interest in helping employers avoid liability, while categorizing assertions by or on behalf of plaintiff-employees as purely “self-serving.”

Judicial Hostility, p. 5.

The report cites to one other factor peculiar to federal courts: summary judgment. The fact is that summary judgment standards in federal court result in very few employment cases actually making it to trial.

• Between 1979 and 2006, employees in discrimination cases won only 4 percent of pretrial adjudications – the bulk of which can safely be assumed to have been on defendants’ motions for summary judgment.

Judicial Hostility, p. 8.

The report recommends that the President appoint judges from diverse professional backgrounds. The lack of judges who have worked for non-profit organizations that assist the poor and judges who have represented plaintiffs in employment and civil rights cases certainly skews the bench to the employer side.

I have another suggestion. Congress needs to step in. When the bench creates obstacles, Congress can lift them. They’ve done it with the Lilly Ledbetter Fair Pay Act, the ADA Amendments Act, and the VOW to Hire Heroes Act. They can fix some more of these problems by making the standards for proving and winning discrimination cases clear; by laying out the burden of proof for both plaintiffs and defendants so it’s not open to hostile interpretation; and by eliminating the judge-created doctrines that make employment law cases ridiculously hard to win.

Do you want change? Contact your member of Congress. Send them this report. Tell them that it's their job to make sure hard-working Americans don't get short-changed in federal court.

Is It Time To End Removal To Federal Court?

2012-02-24T05:30:00.002-08:00

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

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

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

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

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

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

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

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

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

My New Book For Employees To Be Released in Fall 2012

2012-02-17T06:42:00.000-08:00

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

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

You face a crucial career moment. Mistakes will cost you dearly.

Stand Up For Yourself Without Getting Fired provides answers to these vital questions and more:

What Does it Mean If I Sign A Paper Saying I’m a Contractor, Not an Employee?
Am I Exempt From Overtime?
I’m Entitled to Breaks, Right?
My Boss Is Creating a Hostile Environment. Can I Sue?
I Think I’m About to Be Laid Off. How Do I Prepare?

Whether you’re a recent grad entering the workforce or an almost-retiree; newly employed or laid off after 20 years; gay or married with kids; janitor or CEO . . . buy this book if you want specific and relevant advice to help turn those bad situations around or decide to sue the bastards.

Lactation Is Not Caused By Pregnancy or Childbirth, Says Judge

2012-02-10T06:39:00.000-08:00

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

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

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

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

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

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

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

Donna’s tips:

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

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

Nepotism Is Not Illegal

2012-02-03T05:30:00.000-08:00

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

The injustice of it all. Surely they can sue!

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

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

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

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

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

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

Donna’s tips:

a. If your boss is the owner’s niece, be nice. I don’t care if she’s incompetent. Deal with it.

b. Don’t write a long letter complaining about the incompetent friend or relative. It can and will get you fired.

c. If you think the company has crossed the line into illegal discrimination, or you work for a publicly-held corporation and they are treating it like a family business, you might want to talk to an attorney about potentially blowing the whistle. Just be careful. Most Sarbanes-Oxley whistleblower cases are dismissed. They are difficult to bring and difficult to win.

d. If you see that only friends and relatives have a future at your company, start looking. Get out on your timetable rather than waiting until you’re forced to leave on their terms.

Marathon Mediations Aren’t Good For Employees

2012-01-27T05:30:00.000-08:00

I’m a mediator, and I’ve been one pretty much since mediation has existed. When I was trained, in the olden times, mediations were scheduled in 2 – 3 hour sessions. If they lasted longer and the parties were making progress, the mediation was reconvened another day, when the parties were fresh. I’ve found that most cases, if they’re going to settle, can settle in 2 – 3 hours. Yet I find that mediations these day seem to be expected to last 6 – 8 hours or more. So what’s happened to those reasonable-sized mediations?

I actually recently had a mediator say to me recently that her mediations frequently go until midnight. She was quite shocked when I responded that this one would not do so, and that, in fact, I had an appointment in my office at 4:00.

I started wondering. Am I just a curmudgeon?

Then I took my mother car shopping. It was while cooling our heels for hours waiting for the contract to show up that I realized why I absolutely despise the new, trendy marathon mediations. It’s because the employee is just like a car buyer. The employee is either alone or with their one lawyer. The other side is there with a lawyer, an HR rep, maybe a couple other folks. Management is the car dealer. The mediator in the marathon is the salesman, trying to get the sale done. The marathon sale is a pretty nasty sales technique, used by car dealers for years successfully, and for one reason – to get the upper hand with the consumer.

Here’s why I am going to continue to object to mediations that go beyond 3 – 4 hours:

Exhaustion: Just like the car buyer, the marathon process wears the employee down. They get careless, restless. Ready to take anything just to get out of there. They maybe have one lawyer, who is also tired. Management has an entire firm, just waiting by the phone and their computers. Possibly an insurance adjuster too. They can have multiple eyes on draft agreements to catch errors, even at midnight. Employees and their lawyers don’t have that kind of backup. There is absolutely nothing beneficial to employees that can happen after 6 or 8 or 12 hours of mediation in one day. It’s best to break it up into smaller sessions so everyone is refreshed and thinking clearly. I even wonder – is a mediator who allows a session to go that long meeting their ethical obligations to the employee? Don’t they have a duty to make sure the parties are capable of clear thinking?

Abuse: Marathon mediations have an incredible ability to abuse the employee through time wasted, trickling out one by one all the reasons the employee sucked and deserved to be fired. They become shell-shocked, even depressed. They’re already tired. The doubt creeps in.

Expense: Most mediations are borne half by the employee and half by the employer. At several hundred dollars an hour, the employer can make an already-poor former employee shell out dollars they can’t afford with no intention of ever offering anything. If there’s no offer after an hour, something is wrong in my opinion.

Here’s how the marathon mediation starts. The employee gives an opening that lasts about five minutes. The mediator asks lots of questions. Lots. Of. Questions. This, despite getting a detailed position statement ahead of time. Then the employer goes, and speaks for half an hour. More questions.

Then comes the caucus. The mediator spends an hour with the employer side, then comes back without an offer. He wants to go over some facts instead. He’d like to spend an hour or so with us, then go back to the employer. That’s when I’m certain the mediation is going to be a marathon.

Here’s how I stop it from being a marathon. I ask if there’s an offer on the table, and he looks at me funny. I say that, unless I have an offer over a specific amount in the next 30 minutes, he can call it an impasse. The mediator acts like I’m being the bad guy. But because I’m not exhausted, I’m not easily swayed. If, after an hour and a half, there’s no offer (and by an offer I don’t mean $500 or even $5000), it’s time to go. Any mediator worth their salt can get an offer from management in an hour and a half.

I place a firm time limit on the mediation. In my case, I have a pretty immovable time deadline to pick the kids up from school. But it can be anything – a meeting scheduled afterwards, dinner plans, anything that keeps you from being persuaded to lapse into the marathon. Sure, if we’re almost settled and I just need a few minutes, I can usually make arrangements to stay a bit later, but if we aren’t close, then at the deadline we need to impasse or continue to another time.

Another thing I like to do is try to start negotiating even before the mediation. I like to see how close we can get before mediation so we’re not starting from scratch. Then we can tell the mediator where we left off. If we impassed before mediation, the ball is almost always in management’s court, since I always, always make a counter to any offer I’ve received. That way, the mediator can start with management. I don’t understand why some management-side attorneys don’t want to talk before the mediation when they aren’t paying someone by the hour to talk to me. But most will gladly talk beforehand.

From now on, I’m going to tell the mediator right up front my time limit for the mediation. I’m going to tell them why. I’ll even tell them about car dealer tactics if I have to. If we can’t resolve it in that amount of time, then we can break and reconvene another day. Just like in the olden times.

So, do you agree with me, employee-side lawyers? Are marathon mediations bad for your clients? What about management-side? Do they actually benefit anyone but the lawyers and mediator? Are there any mediators out there who still limit mediations to no more than 3 – 4 hour sessions? If you think I’m wrong, I’d love to hear that too.

Work for a Church or Religious School? You May Have No Civil Rights

2012-01-19T04:37:00.000-08:00

The Supreme Court unanimously ruled last Wednesday on the so-called "ministerial exemption" to employment discrimination laws on Wednesday, finding that churches are allowed to discriminate. The exemption is something you won't find in Title VII or other discrimination laws, but is purely a creation of the courts.
While Title VII does have a limited exemption for religious organizations, it is narrow:

This subchapter shall not apply to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

The Americans With Disabilities Act has a similar exemption:

Religious entities:

(1) In general

This subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

(2) Religious tenets requirement

Under this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.

In other words, Congress said that religious organizations can prefer to hire members of their own religion and comply with religious rules. That's it.

The Supreme Court broadened all religious organizations' rights to discriminate, saying . . . read more here in The Huffington Post.

Don’t Make Me Gag: Confidentiality of Settlements When The Other Side Blabs

2012-01-13T07:25:00.000-08:00

The Herman Cain sexual harassment case brought up an issue that has concerned me for years: one-sided confidentiality agreements. As you may recall before your holiday eggnog distracted you, Mr. Cain settled some sexual harassment cases before he ran for President. The agreements said the women couldn’t disclose the terms of the settlements or comment about the cases. When the press dug up the story, he publicly accused the women of making false allegations. The women were gagged, but could they defend themselves?

When I settle cases, I always ask for mutual confidentiality. That would have solved the problem in this case. If the women were prohibited from speaking about the settlement or saying negative things about Mr. Cain, he should have also been prohibited from doing the same thing to them. I ask for mutual confidentiality for a more common (and possibly South Florida only) phenomenon: HR people getting cute in references and saying, “I need to look at the agreement to see what I’m allowed to say.”

When I’ve carefully negotiated neutral references, so the employer can’t say negative things in job references, that kind of statement violates the spirit of the agreement. It also probably violates the letter, because a neutral reference clause says the employer can only give out dates of employment and job title and no other information. Still, because I’m dealing with South Floridians, I like to drive the point home. As much as I enjoy dealing with some of my opposing counsel, I prefer to avoid unnecessary conversations about stupid things like this.

Let’s say you did sign a one-sided confidentiality agreement and the other side leaks like a sieve. You also agreed not to disparage them, but they didn’t do the same. Can you defend yourself? Here are a few things that might help:

Implied covenant of good faith: Every contract has an implied covenant of good faith and fair dealing. If you are gagged and suddenly find your reputation smeared, they may have violated the implied covenant of good faith and fair dealing.

Waiver: If they’ve blabbed to the press, you certainly can argue that they waive the right to confidentiality. Once it’s out, you can argue that you have the right to defend yourself.

Defamation: If they’re saying you are a liar, that you made it up, and you have proof it’s true, then you may have a case for slander or libel. Truth is a defense to a defamation case, so if you did make it up you’ll lose. If you were telling the truth, then your reputation is damaged and you might have a claim.

Herman Cain gave me one more good reason to ask for confidentiality and non-disparagement clauses to be made mutual. Management-side lawyers should want this too, so they don’t have to deal with the specter of seeing their client doing a press conference about a settlement they worked hard to keep secret. But they’ll say, “I can’t bind everyone in the corporation.”

True, they can’t bind the janitor. However, they can bind management-level people. Anyone who reads the agreement will also read that it’s confidential. And they can caution everyone involved that it’s confidential. So don’t buy the silly argument that they can’t bind everyone.

If both sides have to keep agreements confidential, it’s less likely that there will be Cain-sized problems down the road.

Will I Be Taxed on My Employment Law Settlement?

2012-01-06T05:30:00.000-08:00

There’s nothing certain in life but death and taxes. So what made you think you wouldn’t be taxed on your employment law settlement? I ask people this all the time when they express absolute shock that taxes were withheld from their severance check and that they’ll get hit with a tax bill in April on their emotional distress damages.

It’s not for lack of trying. Employment lawyers and advocacy groups on both sides of the aisle have been trying for years to get the Civil Rights Tax Relief Act passed, and 2011 was no exception. It was reintroduced in the Senate on November 2, 2011 to match the House version that was introduced in October.

Right now, the law says that, if you are injured in a car accident or have another personal injury, your settlement or judgment isn’t taxable at all. However, if you’re the victim of discrimination and suffer emotional distress, you are taxed. You also can’t average the income, so you can be taxed at a very high rate.

Here are the types of recovery you might receive in your employment case, and how IRS looks at it.

Back pay: You will be taxed. Payroll taxes must be withheld. You are taxed at a “supplemental wage rate.” It’s reported on a W-2. If the Civil Rights Tax Relief Act passes, multi-year back pay could be averaged over several years for tax purposes, lessening the tax hit.

Front pay/future lost wages: You will be taxed. Payroll taxes must be withheld. You are taxed at a “supplemental wage rate.” It’s reported on a W-2. If the Civil Rights Tax Relief Act passes, multi-year front pay or future lost wage payments could be averaged over several years for tax purposes, lessening the tax hit.

Severance: You will be taxed. Payroll taxes must be withheld. You are taxed at a “supplemental wage rate.” It’s reported on a W-2. If the Civil Rights Tax Relief Act passes, multi-year severance payments could be averaged over several years for tax purposes, lessening the tax hit.

Emotional distress: Even if there are physical symptoms, you will be taxed. However, you don’t have payroll taxes withheld. The danger here is you’ll get hit with a big tax bill in April and, if you don’t put a big chunk of money aside to pay, you’ll be in trouble with the IRS. The employer has to report this payment to IRS, so you will definitely have to pay. It’s reported on a 1099-MISC. If the Civil Rights Tax Relief Act passes, emotional distress damages would no longer be taxable or reported as income to IRS. They would be treated similarly to physical injuries..

Physical injuries: If you’re actually attacked, such as in a sexual harassment case with a rape, then money received for your physical injuries is not taxable income. However, if you mischaracterize emotional distress injuries as physical injuries, you could run into trouble in an audit. It is not reported to IRS.

Liquidated damages: You will be taxed, but they are not wages. They will be reported to IRS on form 1099-MISC.

Attorney’s fees: Attorney’s fees paid in your settlement are income to you, but are not wages. These will be reported as income to your attorney and you. However, under an earlier iteration of the Civil Rights Tax Relief Act where Congress only passed the portion addressing attorney’s fees, the fees are an above-the-line deduction for you in most employment law cases. In other words, you have to report them, but you won’t be taxed on them. This is something you need to discuss with whoever is preparing your tax return and make sure they understand it.

Costs: Taxable but not wages. These are reported to IRS on 1099-MISC. You will be taxed on them, although they may be deductible.

Interest: Taxable but not wages. This is reported to IRS on 1099-INT. Interest is taxable.

Punitive damages: This is taxable but not wages. It will be reported on 1099-MISC.

Overtime: Overtime payments will be taxed as wages. That means payroll taxes will be withheld and it will be reported to IRS on a W-2. If the Civil Rights Tax Relief Act passes, multi-year overtime payments could be averaged over several years for tax purposes, lessening the tax hit.

Taxes: One solution that lawyers have negotiated in some large settlements involving back pay that represents years of income is to have the employer pay part of the employee’s tax hit that results from a lump sum payment. But the payment towards taxes is considered taxable wages. It will be reported on a W-2. This would no longer be necessary if the Civil Rights Tax Relief Act passes.

Because the Civil Rights Tax Relief Act has been attempted and failed so many times, I’m not optimistic that it will pass anytime soon. Yet both employee-side organizations and business organizations support it. Both sides agree that it will make cases easier to settle, which means that litigation costs will go down. The courts will be less clogged. It will be good for just about everyone.

Maybe sometime before I retire this sensible bill will pass. If you think it’s a good idea, contact your Senator and Congressional representative and ask them to support the Civil Rights Tax Relief Act.

Why Repealing Child Labor Laws Is a Truly Stupid Idea

2012-01-03T12:44:00.000-08:00

Did you hear the one where the Republican contender for president said we ought to repeal child labor laws? Sounds like the beginning of a bad joke, but if you weren't paying attention due to all the holiday parties, you might have missed Newt Gingrich's comments on the subject. He said that child labor laws are "truly stupid." He wants poor 10-year-olds to become school janitors.

As the mother of a 10-year-old, Mr. Gingrich's comments have been weighing on me. I had to speak up. Talk like this might get some headlines and votes, but it's shortsighted to even think about abolishing child labor laws.

Anyone who is thinking that this proposal is anything but idiotic needs a little history lesson:

Read more in The Huffington Post.

Thanks again to Gina Misiroglu of Red Room for putting me in touch with the Huffingto Post people!

Donna’s Employment Law Predictions for 2012

2011-12-30T05:30:00.000-08:00

I’m getting out my iPad’s magic 8-ball app and looking into the future. I see a big year for employment law issues in 2012. Here’s where I think we’ll see lots of litigation or legislation:

Military: With loads of returning military members, Congress will scramble to plug any new loopholes that keep military service people from being protected in their jobs. Look for lots of USERRA litigation when employers realize they don’t want to let the person who has been in the position go when Johnny comes marching home. Without a doubt.

Sexual harassment: Now that sexual harassment has become a hot-button political issue again, watch for attempts to weaken sexual harassment protections. Also watch the federal courts continue to erode what few protections employees have left. Will the Democrats have the will and the ability to stop sexual harassment from becoming legal? Very doubtful.

Retaliation: Retaliation has been hot, hot, hot, and it will continue to be so. Watch for attempts to weaken whistleblower laws, both legislative and judicial. While the courts have consistently enforced retaliation laws, they’ve been reluctant to rule in favor of employees in any situations where there was doubt about the legislative intent. For instance, the Fair Labor Standards Act doesn’t expressly prohibit employers from discriminating against potential employees who have sued former employers for overtime or unpaid wages. Watch for more courts to hold that the word “employees” doesn’t mean “potential employees.” Will there be a public outcry when potential employers refuse to hire people who demanded they be paid? My sources say no.

Bullying: No state will have the political willpower to pass anti-bullying laws, despite the growing evidence that bullying is more traumatic for employees than sexual harassment. It is decidedly so.

Tax relief: The Civil Rights Tax Relief Act will stall yet again, meaning that employment law settlements will continue to be taxed where personal injury cases aren’t. Try again later.

Unemployed: The unemployed will start to get some rights. More states will pass laws protecting the unemployed against discrimination. Employers will get more creative in denying them jobs by using credit checks and other excuses. Eventually, Congress will have to take action, but gridlock is likely in this election year. Outlook not so good.

Wage theft: As more employers decide the way to save money is to fail to pay employees or former employees, wage theft laws will begin to spread across the country. Maybe seeing a few deadbeat employers hauled off in handcuffs will be good for the economy. As I see it, yes.

Noncompete: Desperate employers trying to prevent employees from skipping to competitors who will treat them better and pay more money are using noncompete agreements as virtual indentured servitude. You’d think that elected officials would look at noncompete abuse and side with their constituents, but instead the trend is to give employers even more right to restrict competition. I predict more states will beef up employers’ ability to enforce noncompetes. The good news is that employees with resources will be using antitrust laws and the lack of legitimate interests to enforce to fight back. Noncompetes will continue to be the weapon of choice to bully former employees. Without a doubt.

Confidentiality and trade secrets: Agreements where employees promise to keep employer confidential and trade secret information confidential will go hand in hand with noncompetes as a weapon against former employees. Employees who never signed noncompetes will be told by former employers that working for a competitor would inevitable result in disclosure of confidential information. Will judges side with employees who resist indentured servitude? Don’t count on it.

Employees strike back: Working people and the unemployed will eventually wake up to what is happening to them. They’ll start standing up for their rights and demanding that their elected representatives work for them to restore their right to quit and work somewhere else, to get paid and not have a potential employer hold that against them, and that they be able to work free from sexual harassment. Will they do it in time for the November election? Ask again later.

VOW to Hire Heroes Act Fixes Stupid Legal Loophole for Military

2011-12-23T05:30:00.000-08:00

Remember back in May when I wrote about a court that said harassing people at work for their military service was not illegal? The case was one where airline pilots who are military members sued after being mocked and ridiculed at work due to their military service. They sued for hostile work environment under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA says employers can’t deny any “benefit of employment” due to military service. “Benefit of employment” includes “advantage, profit, privilege, gain, status, account, or interest.” The 5th Circuit said USERRA “does not refer to harassment, hostility, insults, derision, derogatory comments, or any similar words. Thus, the express language of the statute does not provide for a hostile work environment claim.”

Well, if you were planning on harassing a subordinate or coworker because they’re in the military, you no longer have a green light. President Obama signed the Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011 on November 21, 2011. Along with lots of employer incentives and benefits for service people, this new law fixed the stupid loophole allowing harassment.

The Department of Labor hasn’t issued regulations on this yet, but the law is in effect now.

Maybe now Congress can fix some more loopholes in employment laws that end up with stupid results for non-military members. No? I didn’t think so.

Donna’s tips:

a. If you think you’re being harassed due to your military service, report it in writing to HR and give them an opportunity to fix the situation.

b. If the company doesn’t fix the situation and the harassment continues or you are retaliated against for reporting the harassment, you probably have a legal remedy now under USERRA.

c. Anyone who harasses someone due to their military service is a royal jerk who should be fired. I’m just saying.

So what do you think? Is this a good new law? Should you be allowed to harass people due to their military service? What other loopholes should Congress be working on? I’d love to see your comments.

Top 10 Things Not To Do At The Office Holiday Party

2011-12-13T13:59:00.000-08:00

It's that most wonderful time of the year. Mistletoe, eggnog and holiday parties in the office make employment lawyers rub their hands together with glee. That's because we get very busy in January after all the party-related firings. There's sexual harassment, discrimination, recriminations, finger-pointing – all the stuff of nice legal fees.
Here are the top things you absolutely should not do at the office holiday party if you don't want to be sitting across a table giving your deposition or reviewing your severance package with an employment lawyer in the new year:

Read more on AOL Jobs .

Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!

Is My Offer Letter a Contract?

2011-12-09T05:30:00.000-08:00

Heather submitted this question at Ask A Manager, and I thought it would be a good one to address here:

I was employed at a large successful company - while there, I got a call from a man who is a CEO of a smaller company offering me a job and saying he could beat whatever I was currently making. Long story short, I ended up taking the position in July at the smaller company and leaving my current position. Two weeks ago, the same man who hired me, also hired a sales manager who has convinced my boss that myself and 1 other rep are making too much money and he is trying to significantly lower our salaries and commission structure. My question is: if this man lured me away from my position at with an offer letter of more money and is trying to renege less than 6 months later, what are my rights? Is there a law that states how long an offer letter is good/enforceable?

Thanks
P.S. Not sure if it makes a difference but I live in Texas...

Heather, the bait-and-switch job offer is more common than you’d think. It happens all the time here in Florida, the center of con artists in the universe. Unfortunately, Texas, like most states in the nation, have at-will employment. That means that you can be fired, demoted, have your pay cut, or be disciplined for any reason or no reason at all.

Sure, the offer letter is probably a contract. It’s an offer and you accepted. There was consideration for it, namely, you started working. But what does that contract actually say? If it lays out your pay structure in writing and says it can only be changed in writing signed by both parties, then they can’t change it without your agreement.

If it says you can be fired at-will, then they can fire you for not agreeing. They can also fire you anytime for any reason.

If it says you can only be fired for cause, then what are your remedies? If the offer says you will be employed from x-date to y-date, then you should get paid out for the length of the employment. It might say that if you’re fired without cause you get a specific amount of severance. It might say that they can fire without cause with x-days of notice, in which case you get paid out for the length of the notice period.

One more possibility: fraud. If they had no intention of honoring the agreement when you were lured in, then you might be able to sue for fraud. It’s tough to prove, so things I’d look at are whether they’ve done the same thing to others. Is this a pattern? Is there some smoking gun or witness that would confirm they never intended to honor the offer? Or did the company have a sudden downturn after you started? If it’s a downturn, then there wasn’t fraud.

Donna’s tips:

a. If you are leaving a secure job for a new position, try to get some assurances in writing about job security. If they want you badly enough, they might agree to put in that they can only terminate for cause and some reasonable severance.

b. If you do get a contract, be careful what you sign. I’ve seen unscrupulous competitors lure top sales people over, have them sign non-compete agreements, then fire them a few months later. Surprise! You’re out of the industry unless you have the financial resources for a long legal fight.

c. Do your due diligence before you accept a job that sounds too good to be true. Google the new employer. Ask to speak to some coworkers before you accept. See if you can find some former employees (try LinkedIn, which lists former employers) to talk to about what their experiences were.

d. If you decline a unilateral pay cut and are fired or quit as a result, you might qualify for unemployment.

Have you ever gotten a job offer that wasn’t what it seemed? If so, did you take legal action or just leave as soon as you could? Do you think there should be some consequences to employers who make phony job offers? If so, what should they be?

I’d also love to hear from other lawyers and HR people, especially in Texas, to see if you have more advice for Heather.

Can My Employer Make Me Speak English, Even On Breaks?

2011-12-02T05:30:00.000-08:00

I got this excellent question from flower on Ask A Manager recently:

Hi, I have a question about languages. I work in the shop as a sales assistance. I am from other country and there are working 5 more persons from the same country as me. So about 2 month ago my boss told for us that we can not speak in our language at all times even there are no customers around. Can they do that?

Thanks for asking, flower! This comes up a lot in areas, like South Florida where I live, that have a large immigrant population. Not surprisingly, EEOC has a section in its compliance manual addressing this specific issue because it is a common problem.

In general, English-only rules in the workplace are allowed if they are enacted for non-discriminatory reasons. Examples of good reasons to have English-only rules would be because customers, supervisors and coworkers speak only English; for workplace safety reasons such as emergencies where everyone needs to understand; to promote efficiency for cooperative assignments; and to allow supervisors who speak only English to monitor the employees’ communications with customers.

Examples of illegal policies would be:

• Prohibiting non-English speaking on breaks
• Subjecting speakers of foreign languages to excess scrutiny
• Prohibiting one particular foreign language from being spoken
• Requiring English-only if coworkers and customers speak multiple languages

Employers also must look at alternatives to English-only rules that might have less of a discriminatory impact. For instance, if an employee reports that two coworkers made derogatory comments about a customer in Sanskrit, disciplining the two employees would be the way to deal with the issue rather than an all-out ban on foreign languages.

Donna’s tips:

a. If your employer implements an English-only policy, the biggest question is why they did it. If they just don’t like hearing Spanish all day, too bad. That’s illegal. If there have been safety issues where an employee called out key instructions in Spanish and someone was hurt because they didn’t understand, then the employer might have a legitimate reason for the rule.

b. Sometimes having a few coworkers speaking a foreign language causes problems with other employees. Morale problems may develop as people think they’re being talked about behind their backs. This might also justify an English-only rule.

c. If you think your employer’s English-only rule discriminates against you based on national origin, it might be time to contact an employment lawyer, make a complaint of national origin discrimination with HR, or file a charge of discrimination with EEOC.

I’d love to hear from you on this. Does your employer have an English-only rule? Does it work or cause problems? If you’re an employer or management-side lawyer, have you ever implemented an English-only policy? Why did you think it was necessary? In general, do you think English-only policies should be banned or should employers be allowed to make any rules they want?

Congratulations to the Blawg 100!

2011-12-01T15:50:00.000-08:00

I'm incredibly honored to have Screw You Guys, I'm Going Home named one of the American Bar Association's Blawg 100 of 2011. Out of over 1300 nominated, eight of my favorite labor and employment blogs were chosen along with my blog. Of those, I'm pretty sure mine is the only employee-side blog, so I'm extra honored.

Included in the list are:

Employment and Labor Insider by Robin Shea

The Employer Handbook by Eric Meyer

Arizoneout by Dinita James

Connecticut Employment Law Blog by Daniel Schwartz

Delaware Employment Law Blog by Molly DiBianca

Ohio Employer's Law Blog by Jon Hyman

FMLA Insights by Jeff Nowak

Work Matters by Mike Maskanka

If you haven't checked these out, you should. They're all well worth reading.

Thanks so much to everyone who nominated me. It really means a lot.

But it's not over. There are 12 categories of blogs, including Labor and Employment, and ABA wants you to vote for your favorite. You can vote once in each category. Registration only takes a minute and it's ultra-simple, I promise. You don't have to be a lawyer to vote.

What You Need to Know If You're Injured At Work

2011-11-25T05:30:00.000-08:00

If you are injured at work, you probably can’t sue your employer. Instead, you’ll likely have to make a worker’s compensation (worker’s comp) claim. An employer who carries worker’s comp insurance is mostly immune for suits for workplace injuries.

Intentional injuries: assault, battery, defamation, and other intentional torts are usually not covered by worker’s comp.

Coworker liability: your coworkers are also likely immune from suit for workplace injuries if the employer has workers comp insurance. However, they could be personally liable for assault, battery, defamation and other intentional torts.

Making claims: you need to follow the employer’s claim procedure for worker’s comp claims. This usually means that you need to report the injury to your supervisor and they need to prepare an injury to report to file with the state worker’s compensation board. You need to notify them as soon as possible, providing the date of injury, witnesses, and how the injury happened.

Light duty: if your company has light duty, they may have to provide it to you and you will be able to get worker’s comp benefits that make up the difference. But many employers will deny that they have light duty and then you may lose coverage because you’re able to work. It’s important to speak with a worker’s comp attorney before you try to go back to light duty.

Work-related: if the injury happens at work or is related to work, such as when you’re running an errand for work, then it should be covered if it was an accident.
Retaliation: generally, your employer can’t retaliate against you for making a worker’s comp claim.

Donna’s tips:

a. Don’t delay if you’re injured. If you wait months before making the claim, your employer may not believe that you were injured at work. The sooner you make your claim, the better your witnesses’ memories will be.

b. Workers’ comp requirements are tough to navigate sometimes. If you have a serious injury, you probably need to talk to a worker’s comp attorney.

So, have you been injured at work? Were you retaliated against? How? Are you an attorney who has handled cases involving retaliation for making worker's comp claims? Did you get reinstated? Did the employer end up paying your lost wages? Did the legal system work or does it need fixing in this type of case? What needs fixing and how would you fix it? I'd love to hear about your experiences, good and bad.

What You Need To Know About Missing Work Due to Illness

2011-11-18T05:30:00.000-08:00

Know your employer’s sick leave policy. Most employers require that you call in as soon as you know you won’t make it. No law requires paid sick leave.

Family and Medical Leave: applies if you have a serious medical condition and need several days off, or need intermittent leave for treatment.

Accommodations: if you have an illness that qualifies as a disability, you might be entitled to accommodations that will enable you to perform all the duties of your job.

Excessive absenteeism: unless you qualify for FMLA leave or have a disability for which you are seeking accommodations, your employer can fire you for any reason, including absenteeism. Know what they consider excessive. If you have to come to work sick, that’s better than losing your job.

Donna’s tips:

a. Lots of people express surprise that they were fired after being sick. “But I had a doctor’s note!” they say. A doctor’s note won’t help you unless you qualify for FMLA leave or an ADA accommodation. 90% of life is just showing up. (Woody Allen). Your employer is entitled to have you at work.

b. If you are contagious, then your employer requiring you to come in anyhow might be an OSHA violation. You can point this out, but don’t be insubordinate.

c. If ordered to come in, then rent a stretcher if you have to. Unless going to work endangers your life, comply with the boss’s order to come to work. Appeal to HR if you can, but don’t lose your job.

What You Need To Know About Your Employer's Health Insurance

2011-11-11T05:30:00.000-08:00

No Federal law requires your employer to carry health insurance coverage for employees (a few states, like Massachusetts and Hawaii, are different). However, once they do have coverage, there are some Federal requirements employers must comply with. If your employment has ended, read the paperwork you get on COBRA to find out about your rights to continued coverage. If you're still employed or about to be employed, here's what you need to know about your insurance.

Non-discrimination: Your employer must not discriminate in providing or reducing coverage based on , for example, age, disability or pregnancy.

Plan description: The Employee Retirement Income Security Act (ERISA) requires your employer to provide a description of your plan and how to make claims.

Privacy of records: If your employer does have access to medical records, such as when it’s self-insured, it must comply with the privacy requirements of HIPAA.

Specific coverage requirements: Certain procedures must be covered once insurance is provided. For instance, if mastectomies are covered, then reconstructive surgery must also be covered. Insurance can’t restrict the length of hospital stays for the birth of a child to less than 48 hours for vaginal delivery or 96 hours for c-section.

Preexisting conditions: HIPAA limits exclusions for preexisting conditions to no more than 12 months, and allows plans to look back no more than 6 months. Pregnancy and genetic information can never be excluded. If you were covered by a prior plan and had less than a 63 day break in coverage, preexisting conditions won’t be excluded. Most children can’t be excluded based on preexisting conditions.

Health factors: You can’t be denied insurance or have benefits reduced due to your health status, physical or mental illness, claims experience, receipt of health care, medical history, genetic information, conditions arising from domestic violence, participation in hazardous activities, or disability.

Certificate of coverage: The employer must provide a certificate of coverage automatically at certain times, and upon request.

Young adults: Your plan must allow you to have your children covered up to age 26.

Lifetime limits: No lifetime limits on coverage are allowed anymore. Most plans won’t be able to have annual limits.

Rescission: If you become ill, the insurance company can’t look for unintentional mistakes on your application as an excuse to deny coverage.

Eliminate or reduce coverage: Your employer can eliminate coverage or change plans at will.

Donna’s tips:

a. Your employer has to disclose if it believes its plan is “grandfathered” and exempt from some of the new health care reform’s requirements. If it is grandfathered and significant changes are made to the plan, it might lose its grandfathered status and have new requirements.

b. Non-grandfathered plans must provide access to pediatricians and OB-GYNs and coverage of preventive services with no cost sharing.

c. Read your plan and understand it. Don’t wait until a crisis to understand your health care coverage and rights.

Yes, Conservatives, There Is Sexual Harassment

2011-11-09T12:27:00.000-08:00

In the wake of the Herman Cain sexual harassment scandal, some conservatives are making outrageous and insulting statements about women who are sexual harassment victims. They ask, "Is there anyone who thinks sexual harassment is a real thing?" (National Review). "Experts" spout off nonsense like, "You know what sexual harassment is? You know what it really is? It's a political tool. . . . It's become an accredited way for malcontent women to score some money." (Rush Limbaugh) and "It always ends up being an employee who can't perform or who under-performs and is looking for a little green." (Laura Graham).

As an employment lawyer who has handled sexual harassment cases for 25 years, I want to make one thing perfectly clear: Yes, conservatives, there is sexual harassment. It's real. It happens every day. Twenty-nine percent of Americans say they've been sexually harassed at some point. And you don't want a world where it becomes legal.

SEXUAL HARASSMENT ESCALATES

Sexual harassment is almost never about sex. It's about power, plain and simple. Harassers, like rapists, like to exercise power over their victims. These are men (and sometimes women) who choose their victims carefully. They're sneaky. They know the danger of getting caught.

Read more in The Huffington Post. I'd love to see your comments there.

Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!

Can My Boss Hold My FMLA Against Me?

2011-11-07T05:30:00.000-08:00

I received this question from calistair:

I have MS, every 4th Friday I have to take off work for a treatment. I recently asked to take 2 hours of PTO on a Friday afternoon. My supervisor responded via email with "The remainder of the group has covered Fridays for you". When asked twice via email what she meant, she came to my desk and verbally stated "On the Fridays of your infusions" I said "Oh no, that's under FMLA". This is 2nd time she has used my FMLA time against me. The first time, we were discussing the department budget and she told me that my reduced work hours (32.5/week) was causing others to work OT, which in turn has caused our department to be over budget. What can I do?

Now, obviously the first thing I advise is to talk to an attorney in your state. I’ll give you some general information on FMLA, which will hopefully help point you in the right direction in the meantime.

Based on your question, it looks like you’re on intermittent leave. FMLA allows up to 12 weeks of total leave in a calendar year, so if you need every 4th Friday off you are using 13 days of FMLA, roughly 2 ½ weeks. You are certainly covered under the law for this, assuming the employer has at least 50 employees and you’ve been there at least a year. Some states also have medical leave laws which might provide more protection.

Here’s what an employer can and can’t do while you’re on FMLA leave:

PTO use: Your employer may require you to take paid leave concurrently with their unpaid FMLA leave. All forms of paid leave are treated the same. Paid leave taken concurrently with FMLA leave could include vacation time, paid personal leave, and paid sick and medical leave. The employer may waive any procedural requirements for the taking of paid leave and you are always entitled to their unpaid FMLA leave even if you do not meet the employer’s requirements for taking paid leave. If the employer is not making you use your PTO for the intermittent leave, you should be entitled to use it like anyone else.

Retaliation: The employer is not allowed to use your FMLA leave against you. They can’t write you up for poor attendance, ding you in performance evaluations for excessive absenteeism or for failing to perform while you were on leave, demote you or fire you for taking leave. However, if they discover performance issues or dishonesty while you’re on leave (say a coworker covering for you finds out you embezzled millions), then they can fire you or discipline you. If the supervisor is retaliating, you probably want to report this to HR, in writing, as a “Formal Complaint of FMLA Retaliation.”

These are the two parts of FMLA that seem to apply to your situation. Other things you might need to know about FMLA are:

Perfect attendance: Employers may deny you a perfect attendance award for taking FMLA leave if employees taking non-FMLA leave are treated the same.

Contact with health care provider: Your employer may communicate with your health care provider to get information required by the FMLA certification form. The employer’s designated representative to communicate with the health care provider must be a health care provider, human resource professional, leave administrator, or a management official, but cannot be the employee’s direct supervisor. Employers are prohibited from asking health care providers for information other than what is required by the certification form. If the employer determines that a medical certification is not complete or is insufficient, the employer must provide written notification to you of what information is lacking and give you seven calendar days to cure the issue. Employers may request a new medical certification each leave year for medical conditions that last longer than one year. Employers may request recertification of a continuing condition every six months.

Fitness for duty: An employer may require the certification to address your ability to perform the essential functions of your job. In the event that reasonable job safety concerns exist, an employer can require a fitness-for-duty certification before you may return to work when you take intermittent leave.

There are many more requirements and responsibilities under FMLA that may apply to you. These are some of the most common issues. I hope this helps. Good luck!

What Is Color Discrimination And How Do I Prove It?

2011-10-28T05:30:00.000-07:00

Even if your harasser is the same race, you can still complain about discrimination if they’re biased due to your color. Basically, color means the shade of your skin. If someone of your same race favors lighter or darker skinned employees, then that could be color discrimination. If your employer has 15 or more employees, then color discrimination is illegal under Title VII of the Civil Rights Act of 1964.

Evidence: how do you prove discrimination based on color? Biased comments by supervisors could be evidence that their decision was because of your color. Referring to you as being too tanned, too pale, or similar statements could show that they engaged in color discrimination.

Most supervisors aren’t that obvious. You can look at others treated differently under the same circumstances. If mostly darker people were kept on in a layoff and lighter employees are targeted, color discrimination might be involved.

Harassment: Anything that doesn’t affect you in the wallet is in the category of harassment. Your employer can’t make you miserable due to your color to try to get you to quit. You can’t be called names and made fun of due to your color either.

What to do?: If it’s harassment, you have to report it first under the company’s policy for reporting harassment and give them a chance to fix the situation. Only if they don’t fix it or if the harassment continues can you file a charge of discrimination with EEOC or your state agency.

If it’s an adverse employment action like denial of a promotion, demotion, suspension without pay, or termination/layoff, you must file a charge of discrimination with EEOC or your state agency before you can sue.

Donna’s tips:

c. If you’re presented with a severance agreement and think you’re targeted for layoff due to your color, contact an employment lawyer. They might be able to negotiate a better severance package for you.

d. Even if the boss is your same color, that doesn’t mean they can’t discriminate based on color. If they prefer lighter skinned employees over darker ones, or darker over lighter, it still might be color discrimination.

Everything You Wanted To Know About Your Employee Handbook (That You Didn't Bother To Read)

2011-10-21T05:30:00.000-07:00

In most states, your company handbook isn’t a contract. They don’t have to follow their own procedures. However, some employers are starting to make employees sign them and add things like an agreement to arbitrate all claims against the employer or a waiver of jury trial.

You will want to read your handbook and understand your rights and responsibilities. Sections you’ll want to pay extra careful attention to are:

Discrimination policy: Where do you report discrimination? Who do you report it to if your supervisor is the discriminating person? If you’re a federal employee, your deadlines are extremely short, so be aware. Know your policies before you need them.

Harassment policy: Ignore that they’ll say to report all harassment. But do report harassment based on race, age, sex, national origin, disability, genetic information, religion, color, whistleblowing, making a worker’s comp claim, or taking Family and Medical Leave. Follow the published policy to the letter (except if it says to report verbally, make sure you also report in writing).

Sick leave/personal leave: Understand who you have to call and how far in advance. Don’t give them an excuse to fire you.

Family and Medical Leave: The employer has to publish the process you must follow to take FMLA leave. Make sure you follow all the steps and get them whatever medical certifications you need to provide.

Donna’s tips:

a. Knowing your handbook makes sense. These are the employer’s rules and you have to follow them.

b. Make sure you keep your copy of the handbook. If the employer wants you to sign saying you’ve received it but they won’t let you keep it, sign, then write, “saw briefly, not allowed to keep a copy.”

c. Pay attention to those updates that the employer sends around in memo form.

d. If it’s a contract for one party, it’s a contract for both. Be careful what you sign. If your company wants you to sign away your rights, have a lawyer take a look, or make sure you understand what you’re agreeing to.

e. If the company fails to follow its own policies, that might be evidence of discrimination or retaliation if they follow the policies for other employees.

Occupy Your Workplace: Changes To Employment Laws That Would Make a Difference

2011-10-18T08:23:00.000-07:00

Just like the Tea Party on the other side, the Occupy Wall Street movement is on the brink of having real political power. Everyone wants to know -- what do they want? What changes will they ask for? With unemployment still hovering at 9% and people scared they will lose their jobs for blinking wrong, America needs real changes to its employment laws. When I wrote my article, 10 Workplace Rights You Think You Have -- But Don't, many commenters were angry -- with me. They thought I must be wrong. I wasn't.

It's time workers started paying attention to the laws that protect them, and the laws that ought to. As a lawyer who has practiced employee-side employment law for over 25 years and who has seen how bad law can devastate hard-working Americans, here are some changes I'd suggest if I were advising the Occupy Wall Street movement.

Read more in The Huffington Post. I'd love to see your comments there.

Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!

My Employer Defamed Me!

2011-10-14T05:30:00.000-07:00

So your employer called you incompetent. Or you disagree with your write-up. You're hopping mad. It's a lie! You're ready to sue. Slander. Libel. It has to be something you can sue for, right? Meh. Probably not. Slander and libel are in the general category of defamation. Defamation is where your employer or former employer makes a false statement of fact about you to someone other than you that damages your reputation. But most statements, even false ones, probably aren't defamation.

Here's what you need to know about defamation in the workplace:

References: Some states have statutes protecting job references to some extent, but even then the employer generally cannot give out knowingly false information. A statement that the employee was an embezzler, ponzi schemer, or pedophile, made when the person giving the reference knew it was false, will probably not be protected.

Qualified privilege: Employers also have a qualified privilege, that is, one that can be overcome, to conduct an investigation of employee wrongdoing. For instance, if someone complains of age discrimination, the employer’s human resources person, attorney, and the named witnesses can speak about the investigation and will probably be protected. There are some ways to overcome a qualified privilege, so you’ll want to talk to an attorney even if you think the statement was privileged.

Publication: The information must have been “published” to a third party, which only means that it had to be said to someone other than you. Some states consider statements made inside the company not to have been published to a third person. A statement to you about you will never be defamation unless others were present to hear it.

Absolute privilege: Some communications can never be the subject of a defamation case no matter how knowingly false. These may include statements made in a legal proceeding, statements made to police, to administrative agencies (such as unemployment), and by government officials in the scope of their employment. I say “may” because this can vary by state and can be fact-specific.

Opinion: Statements of opinion are not defamation. If the employer simply says that the employee was a poor performer, the statements may well be of opinion, not fact. Statements like, “In my opinion, she was a pedophile,” will not get around the law of defamation.

Donna’s tips:

a. Employees can defame former employers too, so be careful. Corporations can be defamed just the same as individuals. If you have a blog, website, or make statements disparaging the company or their products, you should be careful to get your facts right.

b. Defamation claims against employers can be tough. Many judges just don’t like them.

c. Sometimes a cease and desist letter will accomplish more than a lawsuit. Getting the defamer to stop the statements might be more valuable to you.

d. If you are thinking about filing a defamation claim against an individual, be careful and make sure the person has assets that will make them collectible. Broke defendants can be frustrating when you try to collect.