Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Tuesday, September 19, 2017

OSHA Protects You From Dangerous Working Conditions Post-Hurricane

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

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

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

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

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

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

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

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

Monday, September 4, 2017

If My Office Is Closed Due To A Hurricane Do I Get Paid?

With Texas recovering from Harvey and Irma bearing down on Florida right now, I thought I'd re-run this popular and necessary column.

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

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

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

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

Who Is Exempt?: You’re not exempt unless you fall into very specific categories, such as executives, administrative employees, or learned professionals. Plus, your job duties must fall within those categories, not just your title. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This is one of those rare times when it's better to be exempt, so it's the one time you can be glad that President Obama's overtime expansion was gutted.

Pay For Reporting To Work
: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. Florida has no such requirement and neither does Texas, (so maybe it’s a good time to start complaining to your legislators).

Disaster Unemployment Benefits: If you live in certain counties in Texas, you may qualify for disaster unemployment assistance. If your state gets hit, here's where to start searching to see if you can get disaster unemployment assistance.

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

Stay safe!

Friday, August 25, 2017

If Your Prospective Employer Has Lots Of Turnover, Think Twice

All the craziness and turnover at the White House has many Americans wondering what anyone joining the Administration is thinking. But I see it all the time. Folks either desperate for a job or getting an offer that's off the charts decide they can handle whatever a difficult employer throws at them.

They're wrong.

First of all, let's look at that off-the-charts offer. It sounds too good to be true, but you have an offer. They promise a contract is forthcoming but it never does. You still leave your job or move across the country for this great opportunity. If the contract didn't show up before you started, it's probably never showing up. You were scammed.

Better yet is the offer to give you a piece of the company. It's verbal only, but you trust them. Still, they never put it in writing. Surprise! Ownership never happens.

At the very least, confirm any offer you get in writing before you accept. Just email them, with a read and a delivery receipt, something like, "Thank you for meeting with me on Thursday. This will confirm my understanding of your offer to me. The salary for the janitorial supervisor position is $10 million per year and I will be conveyed a 50% ownership interest in the company after one year. If this is incorrect, please advise me within 24 hours. I appreciate the opportunity and will advise you of my decision within 48 hours."

If they respond and say yes, that's the offer, then if you accept in writing you have a contract. Offer+acceptance+consideration=contract. If they call you to confirm, then put that in writing too. "This will confirm our conversation today where you confirmed that the salary for the position of janitorial supervisor is $10 million/year with a 50% ownership interest to be conveyed in one year."

Anything important to you, confirm in writing. If you are going to be made General Manager and right now you are a salesperson, put it in writing. If you are going to have relocation expenses reimbursed, put it in writing. If they guarantee that you will have a job for at least a year while you prove yourself, put it in writing.

That won't keep the boss from being a jerk, but at least you have something to prove what was said and take to someone like me.

Now, back to the jerk. It's hard to turn down a job in the White House or the corporate suite. But sometimes that's the best decision.

If you find out (and you should do some due diligence, like checking Glass Door, LinkedIn and other sources to find out about the company and its turnover rates) that there have been 5 people in the position you have applied for in the past two years, run. This is not a good place. Even if they all died of a mysterious illness, maybe you're dealing with a serial killer or toxic mold. Odds are, someone in the company is awful to work with. Maybe the job isn't what was promised. Maybe the boss hurls staplers at people and punches holes in walls.

Or maybe the boss just likes to scream, "You're fired!"

Try to avoid employers with high turnover. Your health and your resume will thank you.

Friday, August 18, 2017

Can You Be Fired For Being A Racist A**hole? Yes. Well, Maybe. Probably.

So, a Twitter campaign has been outing folks who attended the Nazi/white supremacy/alt right rally outside the University of Virginia in which a Nazi murdered a protester and injured many others by plowing into them with a car. Some of those who have been outed were promptly fired. I've been asked whether firing someone for attending a racist rally is legal.

The answer is yes. Well, maybe. Probably. There. Are you happy?

An employer who is aware of an employee's propensity to engage in race or national origin discrimination (or any other kind of discrimination) has a duty to maintain a safe workplace. That means firing or disciplining the worker, or taking other steps to make sure he or she doesn't engage in illegal harassment or discrimination in the workplace. An employer that fails to take action could be liable for punitive damages if the racist employee acts on his/her beliefs at work.

Thus, my initial answer, which is yes, you can be fired for being a racist a**hole. However.

Some states and local governments have laws protecting you from discrimination due to your political affiliation or activities. For instance, California, Colorado, New York, North Dakota and Louisiana say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. Here in Broward County, it's illegal to fire employees based upon political affiliation. If you work for government, there's the good old First Amendment to protect you. Plus, the Civil Service Reform Act of 1978 prohibits political affiliation/activity discrimination against federal employees.

Thus, my second answer. Maybe. This is one of those situations where two laws rub up against each other. I would think a strong argument could be made that attending a rally like last weekend's would give an employer a legitimate reason other than political affiliation to fire or discipline an employee. Once the employee starts spewing racist stuff in public and waving swastikas, that may well cross a line. Will the courts decide that the employer has a legimate business to protect? Maybe. Even with government employees, the government may well be able to prove that the employee's free speech rights were outweighed by the government's right to efficient and orderly operation.

If, however, the employee has always been respectful to coworkers and customers of color and continues to do so after the rally, maybe the employer doesn't have a legitimate reason other than political affiliation to fire the person.

Still, I default to my third answer, probably. Most states have no legal protection for political firings. So most employees have no legal protection if they attend a racist rally. The employer probably has a duty to protect coworkers and customers from a racist. I suspect most courts will say firing someone for attending a racist rally that turned murderous is perfectly legal, maybe even required.

Friday, August 11, 2017

Will You Let Your Employer Microchip You? Just Say No!

And so it begins. A Wisconsin company is implementing a "voluntary" program where employees can be microchipped. They swear that they aren't using GPS technology to follow the employees. However, they say it is a convenience to the employees, allowing them to pay for things and get in and out of the building quickly.

What's the worst that could happen?

While this foray into treating employees like beloved pets sounds benign, it's only the beginning. I guarantee that if this company's employees agree to be microchipped, employers all over the country will demand the right to implant employees with chips that do have GPS and other nasty tracking software.

I can tell you some of the worst that can happen with microchipping employees. Here are just some of the possible nightmare scenarios:

  • Worker's comp: Infections, allergic reactions, cancer (yes, cancer), medical problems galore.
  • Religious discrimination: Some employees will have religious objections to these implants. Will those objections be honored, or will the employees be fired? 
  • Privacy: Employers will know where employees are at all times. Do you really want your employer timing your bathroom breaks, logging every time you get a cup of coffee or take a brief walk to stretch your legs? And if they have GPS, they will know every time you go to a bar, a movie (and can figure out what movie you saw), political rally, union meeting, etc.
  • NLRB: If employers can track which employees go to union meetings, I predict some NLRB complaints.
  • Disability and pregnancy discrimination: It's only a matter of time before microchips are a "wellness" measure tracking your blood pressure, weight, diseases, and pregancy. Once employers are aware of this information, I can guarantee disability and pregnancy discrimination suits will abound. You should not trust your employer with your health information. It's none of their business.

Need I go on? Just say no to employer microchipping, before all employees are treated like dogs.

Friday, July 28, 2017

Hey Florida Medical Marijuana Users - Gov. Scott Says You Can Be Fired

I've previously written about Florida's medical marijuana law saying nothing about protecting employees who are prescribed marijuana from discrimination. That was bad enough.

Now, it's worse.

Gov. Rick Scott recently signed into law a bill that very specifically says you can be fired for using medical marijuana.

The new law says that "medical use" does not include use, "In a qualified patient’s place of employment, except 228 when permitted by his or her employer."

It also provides:
(15) APPLICABILITY.—This section does not limit the ability 1678 of an employer to establish, continue, or enforce a drug-free 1679 workplace program or policy. This section does not require an 1680 employer to accommodate the medical use of marijuana in any 1681 workplace or any employee working while under the influence of 1682 marijuana. This section does not create a cause of action 1683 against an employer for wrongful discharge or discrimination. 1684 Marijuana, as defined in this section, is not reimbursable under 1685 chapter 440.
So if you thought your employer might actually have to accommodate your use of medical marijuana, think again. It will be in your bloodstream and urine for days, so you can't use it only at home and hope for the best.

The Florida legislature and our governor have, yet again, screwed employees over.

Friday, July 21, 2017

Stupid HR Stuff: If You Don't Want Employees To See The Handbook, You're Doing It Wrong

I hear this all the time: "I was required to sign a paper saying I received the handbook. As soon as I signed, the HR folks snatched up the handbook and didn't let me keep a copy." Or, "I was required to sign saying I received the handbook, but I never actually saw it."

What the heck was the point of that? The whole point of having a handbook is to let employees know what their responsibilities are, where to report issues, how to put in for vacations and sick time, all the stuff you actually want them to do and not do.

If you don't want your employees to see your employee handbook, you're doing it wrong.

I think you'll have a hard time proving some key employment law defenses if you don't actually let employees have a copy of the handbook.

Plus, once you have an employee sign a document that you know and they know is a lie, you lose all credibility with them. Everything you do from then on is a joke. A sham. They won't believe you anymore.

To employees who are asked to sign a document saying they received something they never got, I suggest signing with a notation like, “I was allowed to look at it once but was prohibited from getting a copy.” Or maybe, "I am required to sign this but I have never actually seen the handbook." Having to make a notation like that is probably a bad start to new employment, but it's better than signing something you know is not true.

Whether or not employees got a copy of their handbook comes up in almost all employment litigation. Employers who make a mockery of their handbooks look pretty stupid in court. Not only is your credibility lost with your employees, but you could lose credibility with a judge or jury too.