Non-Compete Agreements Are The New Black, Part 1

As employment lawyer Eric Meyer put it last week in his article on the subject, "orange non-competes are the new black." They are increasingly being used by employers everywhere against all types of employees - from "tech workers to sandwich makers." Recent statistical studies indicate that one in four workers have signed a non-compete in their lifetime and 12.3 percent all workers are bound by one right now.

These numbers will understandably vary widely from state to state and from industry to industry. From my own experience working with hundreds of Texas employees in non-compete cases, it would not surprise me if the numbers are even higher for Texas workers.

In his article, Meyer indicates his surprise that so many employees who are presented with a non-compete agreement simply sign it without protest. He was also surprised by the relatively small percentage of employees who try to argue with their employer about the issue.  The Washington Post article to which he refers notes the following:

“And overall, only about 10 percent of workers who’ve signed a non-compete ever try to argue over it, with most assuming that it’s either not negotiable or that doing so would cause tension with an employer.”

In my personal opinion, non-compete agreements are morally justifiable only in the most extreme cases -- situations in which employees truly will be given access to real trade secret information that would obviously cause serious harm to an employer if it got into the hands of a competitor (think secret recipe of eleven herbs and spices). This is a very small percentage of workers. And yet we see that more and more employees are being asked and are agreeing to sign such agreements and thereby damage their ability to work in their chosen field should they be fired or choose to leave their employer.  Why?

I think there are a few reasons for this phenomena:

• An actual or perceived weak bargaining position. -- A majority of the time non-competes are presented at or just after the point of a job offer being made. Employees believe that if they want the job then they have no choice but to sign the agreement.

• Employees don't realize what they are signing. -- Many times employers slip non-compete agreements in along with the 30 other documents that a new employee must sign on his or her first day. They then rush them through the process and absolutely do not encourage the new employee to actually take the time to read and consider the documents they are signing. I would estimate that 30%-40% of those who consult with me because they have been sued or threatened with a lawsuit relating to a non-compete state they were not even aware that they had signed such an agreement.

• An incorrect belief that such agreements are not enforceable. -- The enforceability of non-compete agreements is largely a creature of statute and varies dramatically from state to state but here in Texas such agreements are, generally speaking, very enforceable. But this wasn't always the case. As big business interests have increased their stranglehold of Texas' legislature and its courts over the last 20 years, the law regarding non-competes has done nearly a full 180. Non-compete agreements - once considered to be not worth the paper they were written on - are now as good as gold. Yet people's perceptions of such agreements have been slow to catch up.

So, given this state of affairs, what should an employee who is presented with a non-compete do to protect himself or herself? I'll address this in a follow-up post next week.

Employment Litigation is Too Expensive

Sticker Shock

Sources I trust say that defending a case through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000. If an employer loses summary judgment (which much more often than not is the case), the employer can expect to spend a total of $175,000 to $250,000 in legal fees just to take a case to a trial. (Source) Obviously this will vary somewhat based on geography but, even adjusting for that issue, this is a crazy amount of money to spend defending your average employment discrimination case.  The average employment case settles out of court for about $40,000. (Source)

Simply put, defending employment lawsuits costs too much. Why on earth are companies paying $75,000 to $250,000 to defend cases that, on average, can be settled for $40,000?

The answer is...you guessed it...complicated. From my viewpoint as an attorney who has practiced on both sides of the docket for both individuals and large corporations, the cause of this strange phenomena involves the interplay of several factors, including modern American law firm business structure, client emotional issues, and the way the courts have developed their procedures for handling employment cases. 

 1) Defense Firm Structure and Billing Pressure

Any law firm that wants to advertise itself as "full service" to its business-side clients needs to have lawyers who can defend employment-related cases. So they do. The problem is that there simply aren't enough employment-related cases to keep this many lawyers legitimately busy. In my city there are probably 3-5 times as many employment defense lawyers as there are plaintiff's side employment lawyers. As a result, defense lawyers' dockets have far fewer cases than the average plaintiff lawyer's docket.

But even though they have fewer cases to manage and the average settlement value of their cases may be relatively low (as compared to the commercial litigation partner down the hall), they still face the relentless pressure to bill fees for the firm. This results in a natural motivation for defense lawyers to be extremely thorough in the defense of such cases. File discovery motion after discovery motion, subpoena the plaintiff's employment records from 10 years ago whether there is any realistic belief they will gather relevant information or not, file a motion for summary judgment in nearly every single case, etc. You get the idea.

Is there anything unethical about thoroughly developing a case file? No, of course not. Does it make sense to advise a client to spend three times more to fight a case than it could have been settled for the week it was filed?  Perhaps not.

 2) Emotions

Employment-related cases can be very emotional for both sides of the docket. When an employment lawsuit is filed against a company, the managers who are alleged to have acted wrongfully understandably take the allegations very personally. They feel personally and professionally threatened. They often lock into a "flight or fight" emotional state that makes it nearly impossible for them to use sound business judgment in dealing with the claim.

Strong emotions are something that employment lawyers on both sides of the docket have to deal with. Getting clients to get past their emotions and to make a "business decision" about their case based on the realities of the law, the court, and the potential outcome of a trial is something about which I often commiserate with opposing counsel.

But defendants have a potential advantage in this regard. Usually, the defendant is a corporate entity. This means that often the manager who is accused of wrongdoing can be removed and protected from the decision-making process when it comes to directing the course of the litigation and settlement negotiations. Surprisingly, however, many defendants leave the manager involved. Almost without exception this makes the process longer and more expensive for all involved.

3) The Law

The law in the area of employment-related disputes has developed quite differently than the law governing say, personal injury or commercial disputes. From its inception, employment law has taken a fairly straight forward question, "Was the plaintiff terminated because of ______?" and obscured it in layer after layer of complicated abstraction. A lengthy required pre-litigation administrative process, tricky jurisdictional issues, multi-step prima facie standards, shifting burdens of proof, and the improper treatment of many fact questions as something that can be decided by a judge as a matter of law have combined to make employment law one of the most complex areas in which to practice.

The overly-complicated nature of the law applicable to employment disputes greatly increases the time and money spent litigating issues that are, fundamentally, pretty straight forward and easy to understand. This has led to a practice of Defendants filing complex and lengthy motions for summary judgment in nearly every single case. If the motion is successful and the case is dismissed then the plaintiff will likely file an appeal - a process that adds another year's worth of work and expense to the case. If the motion for summary judgment fails then, typically, the case will settle. Note that the case may settle not necessarily because the defendant believes it would certainly lose at trial but because it simply can no longer justify spending more time and expense on a case that can settle for less than has already been spent. And often the case settles for at or near an amount that it could have been settled for before the motion for summary judgment was filed.

The law applicable to employment cases (and more specifically summary judgment practice in such cases) desperately needs to be reformed to curb the wasteful and abusive overuse of dispositive motions. Summary judgment was originally designed to only be available in cases in which there is truly no genuine question of fact to be determined by a jury. Instead they are abused an filed be defendants in nearly ever single case. Until this practice is reformed, both sides of the docket will spend more time and money than they should resolving employment-related disputes.

Is There a Solution?

The current system really isn't working terribly well for either plaintiffs or defendants. It doesn't serve anyone's interest to drag out these disputes for years and spend tens of thousands of dollars on attorney's fees and expenses when a very high percentage of such disputes could be resolved relatively early for far less money than most defendants end up paying in combined attorney's fees, expenses and settlement funds. I certainly don't claim to have all the answers but I do have a few thoughts from my time spent both as a plaintiff's lawyer and as a defense lawyer at a large international firm. I will discuss these ideas in an upcoming post. (And in case you were wondering -- No, binding arbitration is not the answer. It is actually more expensive and time consuming than litigation.)

What is a "Right to Work" law?

In meeting with employees, I often am asked about so-called "Right to Work" laws. What are they? When do they apply? Is it the same as "Employment at Will"? Here's the answer:

"Employment at Will" and "Right to Work" are two different concepts that can be confusing and are often mixed up by employees. But they are very different concepts.

"Right to Work" is a concept that has to do with union membership. A "right-to-work" law is a state statute that prohibits union security agreements, or agreements between labor unions and employers. Generally speaking, they forbid union "closed shops". A closed shop is one in which union membership is required for employment if your job is covered by an existing collective bargaining agreement between the employer and employee. In a right to work state, a union can be elected to represent the workers but the workers cannot be required to join the union or pay union dues.

The sounds pretty good to many employees at first and right-to-work laws have gained some traction as a result. Right-to-work laws exist in 24 U.S. states, mostly in the southern and western United States, but also including, as of 2012, the midwestern states of Michigan and Indiana. The downside of such laws is that they dramatically weaken unions buy effectively starving them of the funds they need to operate and organize. As a result, union membership in right to work states has dropped dramatically. Lower union membership in these states has led to a drop in workers's wages and severe damage to job protections for workers in those states.

Not surprisingly, right-to-work laws have been strongly championed by anti-worker political action groups, such as U.S. Chamber of Commerce. Such groups have spent millions on running misleading advertising and purchasing politicians who will support their efforts to curtail workers' rights and suppress wages.

Read more...

What is "Employment At Will"?

In meeting with employees, I often am asked about "Employment at Will". What does it mean? When does it apply? Is it the same as "Right to Work"? Here's the answer:

"Employment at Will" and "Right to Work" are two different concepts that can be confusing and are often mixed up by employees. But they are very different concepts.

"Employment at Will" means that an employee can be terminated at any time, for any reason or for no reason at all. If the employer decides to let you go, that's the end of your job--and you have very limited legal rights to fight your termination. If you are employed "at will", your employer does not need good cause to fire you. In every state but Montana (at last check), employers are free to adopt at-will employment policies, and virtually all do. In fact, unless your employer gives some clear indication that it will only fire employees for good cause, the law presumes that you are employed at will.

Even "at will" employees, however, cannot be terminated for an illegal reason.

Read more...

Preparing for Your Initial Consultation with an Employment Lawyer

Yesterday we discussed some basic tips to help you search for an employment attorney for your case.  So now you have an initial consultation set up with a lawyer who has been recommended to you by a trusted source or who you have found from doing your own research. How do you make sure you make the most of this initial meeting?

In a word: Preparation.

Once you have a consultation with an employment lawyer scheduled, it is important that you prepare to make the most of the time you will have with the lawyer. Employment lawyers get dozens of contacts per week from potential clients and must be very selective about the cases they take. The initial consultation is your opportunity to make sure the attorney is well informed about the facts of your case. It is also your best chance to show the attorney that you are someone he or she wants to work with over the months and/or years that your matter may be pending on the firm’s docket.

Here are some important tips to keep in mind as you prepare for the meeting:

• Take the meeting seriously and be prepared — Make sure you have good, clean copies (not originals) of any related documents with you when you arrive. Don’t expect the attorney to be your copy service and don’t leave your originals with the attorney.

• Bring a fact chronology — Employment cases are complicated and fact intensive. A lawyer will not be able to tell you whether he can help you unless he knows most of the details of your case. The best way to do this is to bring a simple fact chronology that outlines the factual timeline of your case. A simple “Date — Fact” format will work fine in most cases. If at all possible it should be typed and not hand-written.

• Be on time — Nothing says that you are not serious about your case like being late to your consultation. An attorney’s time literally is their money. Don’t waste it.

• Pay the requested consultation fee on time or have it ready when you walk in the door — If the matter is not important enough for a consultation fee then don’t make the appointment to begin with. But if you do make the appointment, don’t put the lawyer in the position of trying to collect a fee from you at your first meeting. It’s not the way to get off to a good start.

• Dress appropriately — How you dress communicates the level of seriousness you give the issue. You don't have to wear a suit. But showing up in a dirty T-shirt and flip-flops won't help convince the attorney that you are serious about your case. During the meeting the attorney is considering what a jury will think and whether they will take your testimony seriously. How you present yourself plays into this analysis.

• Don’t bring unexpected guests — Attorney-client communications are privileged. This privilege can be lost if others sit in on the meeting. While someone else can certainly accompany you to the lawyer’s office, don’t expect them or ask for them to come into the meeting with you unless you cleared it in advance with the attorney. Dealing with this issue at the time of the meeting uses up valuable meeting time while the lawyer tries to assess whether they should be allowed into the meeting or not. Also, keep in mind that the lawyer wants to hear YOUR story and is less interested in your husband/wife, girlfriend/boyfriend or mother’s version of the story.

• Don’t bring children — I love children. But they should not be brought to your attorney consultation. They are a distraction for you and the attorney and it can sometimes be difficult to discuss sensitive matters in front of them. Get a sitter or ask a friend or family member to watch them for you.

Following these steps should help you have a productive initial consultation and hopefully find a qualified attorney to handle your employment-related legal matter.

How to Hire An Employment Lawyer

So you need to hire an employment lawyer but you don’t know how to get started? This article is for you.

Hiring a lawyer to guide you through an employment-related dispute can be challenging. Unlike cases involving personal injury matters, there aren’t hundreds of employment lawyers running TV advertisements in an attempt to get you to “Call now!” Quite the opposite is true in fact.

Due to the complicated statutory nature of employment law practice, there are likely only a small handful of lawyers in even a relatively large city who are board certified to represent employees in employment-related disputes. The few who are qualified and have the years of experience you should be looking for will likely be extremely busy because there are so few of them. For this reason it is important that you do some research and get your own materials together before you start making calls.

To get you started, I've prepared a handy guide outlining some of the basic steps you need to take.

Step 1 - Do A Little Research Online. 

Before you pick up the phone and start making calls, pick up your mouse and start making clicks. Many good employment lawyers will have a website and/or a blog that will provide you with a lot of quality information about employment law issues. Take a look at what practice areas in which the lawyer claims he or she practices. You don’t want a jack-of-all-trades-master-of-none attorney for your case. You want someone who concentrates the majority of his/her practice on employment law issues. You could also search legal directory avvo.com to help you find local lawyers who represent employees. It isn’t a perfect system but it will give you a good list to start your research.

Step 2 - Check For Board Certification

Lawyers are not required to be Board Certified in employment law to practice it in Texas. Some states don’t even provide for board certifications. But in Texas, the State Bar of Texas does provide Board Certification to those lawyers who practice employment law for a sufficient period of time, provide recommendations from lawyers and judges who they have practiced with and who pass a lengthy examination process. You can learn more about Board Certification here.

Step 3 - Expect To Fill Out A Questionnaire And Pay A Fee For A Consultation

Many firms have developed questionnaires. These are not idle exercises. You must fill them out to help your lawyer understand your case so he can better help you. Plus, filling out these short (usually electronic) forms may save you money. Some attorneys use short electronic forms as an initial screening tool for the many potential client contacts they receive each day. Sometimes, the form indicates a simple question for which a quick answer can be provided. Other times, the type of case being described would be better handled by another lawyer who specializes in that specific niche — you can usually get that referral set up at no cost. Then, if the form indicates an issue on which a lawyer believes he or she can provide meaningful assistance, a full, in-person consultation can be scheduled.

Most attorneys charge a small consultation fee to review employment-related matters. Because employment law is very fact specific, an employment lawyer needs to know all the facts of your case before he or she can commit to representing you. This often takes time. If employment lawyers are not paid something for this, they cannot stay in business.

Step 4 - Prepare For Your Consultation

Once you have a consultation with an employment lawyer scheduled, it is important that you prepare to make the most of the time you will have with the lawyer. I have written an article discussing the initial consultation in more detail, including tips on what to bring and how to prepare for this important meeting.

Pregnancy Discrimination at the Supreme Court - Oral Argument in Young v. UPS

While it has been illegal to discriminate against pregnant workers for many years, this fact has been little help to many women who have been denied accommodation of their pregnancy by their employer. That's right, there has never been a clear decision from the Supreme Court on the issue of whether the Pregnancy Discrimination Act actually requires companies to provide reasonable accommodations to an employee based solely on her pregnancy. Many employers, including UPS, have refused women any help or accommodation due to pregnancy. Last week the Supreme Court finally heard argument on the issue.

Oral argument was held December 3, 2014.  The Pregnancy Discrimination Act ("PDA") provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. §2000e(k). In this case the Court will decide whether, and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are "similar in their ability or inability to work."  Below the district court and Fourth Circuit ruled in favor UPS.

Facts of the Case

Peggy Young was employed as a delivery driver for the United Parcel Service (UPS). In 2006, she requested a leave of absence in order to undergo in vitro fertilization. The procedure was successful and Young became pregnant. During her pregnancy, Young’s medical practitioners advised her to not lift more than twenty pounds while working. UPS’s employee policy requires their employees to be able to lift up to seventy pounds. Due to Young’s inability to fulfill this work requirement, as well as the fact that she had used all her available family/medical leave, UPS forced Young to take an extended, unpaid leave of absence. During this time she eventually lost her medical coverage. Young gave birth in April 2007 and resumed working at UPS thereafter.

Young sued UPS and claimed she had been the victim of gender- and disability-based discrimination under the Americans with Disabilities Act and the Pregnancy Discrimination Act. UPS moved for summary judgment and argued that Young could not show that UPS’s decision was based on her pregnancy or that she was treated differently than a similarly situated co-worker. Furthermore, UPS argued it had no obligation to offer Young accommodations under the Americans with Disabilities Act because Young’s pregnancy did not constitute a disability. The district court dismissed Young’s claim. The U.S. Court of Appeals for the Fourth Circuit affirmed.

Playing Field Changes while Case is Pending

While this case has been ongoing, the U.S. Equal Employment Opportunity Commission (EEOC) issued new pregnancy accommodation guidelines stating that employers should accommodate the physical restrictions of women with normal, uncomplicated pregnancies as if those women had protected disabilities and a growing number of states have passed laws mandating reasonable accommodations of pregnant workers.

Predictions

Most legal commentators (including this one) appear to believe the court should find in favor of pregnant employees in this case and require employers to provide reasonable accommodations to pregnant employees. The question then becomes a case-by-case analysis on the nature and degree of accommodation required. This is a similar analysis to what is required in other accommodation-related cases.

Related Links:

Link to Supreme Court Oral Argument in Case

Wage Theft Costs American Workers as Much as $50 Billion a Year

Wage theft is a nationwide epidemic that costs American workers as much as $50 billion a year, a new Economic Policy Institute report finds. In An Epidemic of Wage Theft Is Costing Workers Hundreds of Millions of Dollars a Year, EPI Vice President Ross Eisenbrey and EPI intern Brady Meixell examine incidences of wage theft—employers’ failure to pay workers money they are legally entitled to—across the country. The total amount of money recovered for the victims of wage theft who retained private lawyers or complained to federal or state agencies was at least $933 million in 2012, almost three times greater than all the money stolen in robberies that year. However, since most victims never report wage theft and never sue, the real cost of wage theft to workers is much greater, and could be closer to $50 billion a year.

“Wage theft affects far more people than more well-known crimes such as bank robberies, convenience store robberies, street and highway robberies, and gas station robberies combined, and can be absolutely devastating for workers living from paycheck to paycheck,” said Eisenbrey. “For low-wage workers, the wages lost from wage theft can total nearly 10 percent of their annual earnings.”

The authors also conducted a study of workers in low-wage industries in New York, Chicago, and Los Angeles and found that in any given week, two-thirds experienced at least one pay-related violation.  They estimate that the average loss per worker over the course of a year was $2,634, out of total earnings of $17,616. The total annual wage theft from front-line workers in low-wage industries in the three cities approached $3 billion. If these findings are generalizable to the rest of the U.S. low-wage workforce of 30 million, wage theft is costing workers more than $50 billion a year.

Read More:

Click here for a copy of the entire report.

Theoretically related posts:

Courts Make it More Difficult for Employees to Pursue Tip Theft by Employers

Wal-Mart Sued for Wage Theft

“Wage Theft”: The Trendy Phrase That May Not Mean What You Think It Means - From Daniel Schwartz's always excellent Connecticut Employment Law Blog

Wage Theft and Misclassification Report - Contains state by state grades.

Bad Bosses - You ARE the Weakest Link!

Robin Shea posted a great article yesterday titled “Weakest link” is no way to run your workplace. In it she discusses the problems related to bosses who like to stir the pot and keep employees feeling distrustful and uncertain. Not surprisingly, she thinks its a bad idea. She writes:

Manufactured workplace rivalry can cause morale to plummet and teamwork to become nonexistent. Which in turn results in high turnover, including the loss a lot of people you probably didn’t think were “weak links.”

From a legal standpoint, a hyper-competitive workplace environment dramatically increases the odds that the employer will become a defendant in a lawsuit, the subject of an EEOC charge or other administrative complaint, or the target of a union organizing campaign. It can also result in increased rates of workers’ comp and disability-related claims because employees are too stressed out to be able to face Lord of the Flies each day.

As someone who talks to 5-10 unhappy current or former employees a week, I can tell you that this is a big, big problem in the American workplace that is commonly overlooked by corporate HR departments. Too many HR departments seem to have a type of tunnel vision centered around whether they can determine if bad behavior is illegal or not. They miss the point.

If you have a boss who is so bad that your employees are seeking advices from a lawyer, you have a big problem - regardless of whether I end up telling them the issue is legally actionable or not.

Read Robin's excellent article here.

To learn more about workplace bullying, read this article by San Antonio employment lawyer Chris McKinney.

$185 Million Dollar Verdict Against AutoZone in Pregnancy Discrimination Case

A federal jury in San Diego has rendered a verdict against AutoZone for $872,000 in compensatory damages and $185 million in punitive damages after determining that AutoZone retaliated against against a manager for being pregnant, eventually resulting in her demotion and later termination.

According to the lawsuit, the philosophy was summed up by the vice president for western operations during a visit to a store staffed by a female manager and other women. He allegedly took the district manager aside and said: “What are we running here, a boutique? Get rid of these women,” the lawsuit states.

U-T San Diego reported the verdict.  The newspaper says it is believed to be one of the largest employment law verdicts for an individual in U.S. history.

AutoZone is an auto-parts retailer that operates about 4,000 stores across the U.S. and abroad.

Readers should keep in mind that a "verdict" is not the same as a "judgment". The verdict will likely be significantly reduced by the court's application of applicable statutory caps on damages. Even so the verdict is large enough that an appeal by the company is a virtual certainly.

Read more: U-T San Diego

Flexible Working Arrangements Aren't Just for Women

For years, conventional wisdom held that women far more than men took advantage of flexible working arrangements to balance work/life responsibilities. Now comes a new study revealing that male employees feel equally empowered to use programs that allow flexibility in how, when and where work happens.

The Working Mother Research Institute found that 77% of men have some degree of flexibility in their work schedules, and that 79% of those men feel comfortable using flex benefits.

The study, titled “How Men Flex: The Working Mother Report,” found that 59% of working dads would choose part-time work if they could still have a meaningful career. However, 36% of them believe their organization’s leaders would look down on men making that choice.

A different study, by the Society for Human Resource Management, found that about half of U.S. employers formally offer part-time and reduced-hours schedules. Flex-time—in which employees can vary their schedules as long as they’re at their workstations during core hours—is an option for 54% of employees. Telecommuting is available in 39% of organizations.

Click through to read the entire article.

Ebola in the Workplace Followup

The news about Ebola and its effect on the workplace continues. Employers are struggling to understand the potential workplace implications of the disease and how to deal with employees who may have been exposed or who are reluctant to travel to parts of the world that might expose them to Ebola.  I've posted on the topic here:

• McKinney Interview re Ebola on LXBN TV

• Fired Over Fears of Ebola: McKinney Interview on WOAI-TV

Some of my fellow law bloggers have been busy covering the situation:

• Ebola: Individual’s Freedoms v. Community Health Concerns – Who Wins?

• Ebola Matters of First Impression; Law Lags Behind Policy

• Podcast: Managing Ebola Concerns in the Workplace

• Seven Steps for Employers to Address the Ebola Threat

• Ebola in the Workplace – Practical Suggestions

• Ebola in the Workplace – The Law

Developing.

EEOC is Challenging Some Corporate Wellness Programs as Violating the ADA

Marc Herman, writing for the Connecticut Employment Law Blog:

"94% of employers with over 200 workers according to the EEOC, offer their employees wellness programs....'The EEOC contends that the biometric testing and health risk assessment [in some wellness programs] constituted “disability-related inquiries and medical examinations” that were not job-related and consistent with business necessity as defined by the Americans With Disabilities Act (ADA). These alleged actions and severe consequences for not providing prohibited information as part of its “wellness program” violate Title I of the ADA, which prohibits disability discrimination in employment, including making disability-related inquiries.'"

Remember, voluntary medical examinations as a part of a wellness program are fine. But if employees are penalized for not participating in the medical examinations, they are likely to be found to be involuntary.

Read Herman's entire article here.

Video Interview: Discussing Ebola-Related Terminations with LXBN TV

Following up on my recent post on the subject, I had the opportunity to speak with Colin O'Keefe of LXBN on employees being terminated over Ebola. In the brief video interview, I share what I've been hearing on these firings and offer a bit of guidance to employers and employees on dealing with Ebola concerns.

Fired Over Fears of Ebola: What you need to know.

Well, it has happened already. My firm is getting calls from employees who have been terminated or fear termination because their employers are afraid they may have contracted Ebola during recent trips to the African continent.

I was interviewed this week on WOAI-TV regarding this issue. Here's the video:

I think the most important points to take away on this issue are these:

• Employers should keep in the mind that the chances one of their employees actually has Ebola is incredibly low. Don't make decisions based on fear and ignorance.

• Employers should keep in mind that if an employee actually does have Ebola, that employee is likely protected from discharge by the Americans with Disabilities act. Employers have a duty to accommodate conditions such as this. In the case of Ebola, a short leave of absence is the obvious accommodation of choice. Whatever an employer does, it should be done thoughtfully and with the assistance of competent employment law counsel.

• Employees should understand that people's fears of Ebola right now are disproportionately high and in some cases completely irrational. If you suspect that your employer is afraid you may have contracted the disease because you recently traveled to Africa or were near someone who did, open a dialogue with your employer. Employers are forbidden under the ADA from asking you about your health without solid evidence that you have contracted the disease but employees have no such restriction. Let cool heads and dialogue be the rule, not the exception.

In the case of Ebola, let's not let fear of the disease become more of a problem than the disease itself.

You May Be More Biased Than You Think

I have spent many years fighting against intentional civil rights violations in the workplace. Workplace discrimination is a terrible thing. It destroys careers, harms families, and is bad for the economy. And most people, I truly believe, are against it.

But what science is now showing us is that even very good, well-meaning people can discriminate at an unconscious level. According to this science, you are doing it right now as you read this.

You're faced with around 11 million pieces of information at any given moment, according to Timothy Wilson, professor of psychology at the University of Virginia and author of the book Strangers to Ourselves: Discovering the Adaptive Unconscious. The brain can only process about 40 of those bits of information and so it creates shortcuts and uses past knowledge to make assumptions.

So how do we deal with this information overload? Our brains compensate by making assumptions (aka "stereotypes") for everything...and everyone one we encounter. In other words, we are guided in our decision-making not just by the objective data we received but also by what we expect to be true. This can be an especially challenging problem for those who are trying to make hiring decisions in an ethical and unbiased manner. The hardest part of this is that we don't feel or believe that we are allowing bias to color our perceptions...but it does anyway.

This issue effects every company across the country and it is a serious problem that can only be addressed by actively discussing it and taking active steps to acknowledge and eliminate our unconscious biases. This Fast Company article discusses the problem and some tactics that we can all use to combat it.  It's a good article and I commend it to your reading.

So if my biases are "unconscious" how can I do anything about them? After all, I don't even know I'm being biased right? Well, not exactly. We know you are being biased. We now know that we are all biased. So the remedy is to change the way we make decisions so that these unconscious biases are limited by the systems we design. Taking pictures, names, etc out of hiring materials so that initial hiring decisions (or interview lists) are made without knowledge of the candidates' demographic information is one simple example. Creating clear criteria for evaluating candidates before looking at their qualifications is another. More reliance on objective data and less reliance on your "gut" should be the goal.

The article discusses this in greater detail here. It is an important issue that I hope employers and HR specialists start to pay greater attention to.

Shell Oil and Related Company Pay Over $4 Million in Overtime Back Wages Following DOL Investigation

Shell Oil Co. and Motiva Enterprises LLC, which markets Shell gasoline and other products, have agreed to pay $4,470,764 in overtime back wages to 2,677 current and former chemical and refinery employees as a result of investigations by the U.S. Department of Labor that found violations of the Fair Labor Standards Act.

The department's Wage and Hour Division conducted investigations at eight Shell and Motiva facilities in Alabama, California, Louisiana, Texas and Washington, which found that the companies violated FLSA overtime provisions by not paying workers for the time spent at mandatory pre-shift meetings and failing to record the time spent at these meetings.

"Employers are legally required to pay workers for all hours worked," said U.S. Secretary of Labor Thomas E. Perez. "Whether in the international oil industry, as in this case, or a local family-run restaurant, the Labor Department is working to ensure that responsible employers do not experience a competitive disadvantage because they play by the rules."

The Wage and Hour Division's Houston District Office coordinated investigations with the Gulf Coast, New Orleans, San Francisco and Seattle District Offices to ensure nationwide compliance by Shell and Motiva. The findings revealed that those eight Shell Oil and Motiva refineries failed to pay workers for time spent attending mandatory pre-shift meetings. The companies required the workers to come to the meetings before the start of their 12-hour shift. Because the companies failed to consider time spent at mandatory pre-shift meetings as compensable, employees were not paid for all hours worked and did not receive all of the overtime pay of time and one-half their regular rate of pay for hours worked over 40 in a workweek. Additionally, the refineries did not keep accurate time records.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 per hour. Workers who are not employed in agriculture and not otherwise exempt from overtime compensation are entitled to time and one-half their regular rates of pay for every hour they work beyond 40 per week. The law also requires employers to maintain accurate records of employees' wages, hours and other conditions of employment, and it prohibits employers from retaliating against employees who exercise their rights under the law.

Source: US Department of Labor

Ninth Circuit Holds FedEx Drivers are Employees, Not Independent Contractors

Many will be surprised to learn that for years FedEx has treated its delivery drivers as independent contractors rather than as normal employees.

Why you ask?

The answer is simple: Money.

FedEx avoided health care costs, workers compensation insurance payments, paid sick leave and vacation, retirement costs and more. FedEx made drivers pay for their  FedEx-branded trucks, FedEx uniforms, and those little hand-held scanners they use. And don’t forget fuel, insurance, tires, oil changes, maintenance, even workers’ compensation coverage.

That all adds up to a lot of money. And that’s why these decisions out of the Ninth Circuit Court of Appeals are such a big deal. A three-judge panel of the appeals court ruled that FedEx drivers were employees “as a matter of law” under both California and Oregon law and “FedEx’s labeling of the drivers as ‘independent contractors’ in its operating agreement did not conclusively make them so.”

While I do not practice in California or Oregon, the tests at issue in these decisions do not appear all that different from the tests most other states that I am familiar with use to determine employee vs. independent contractor issues. And that fact could spell big trouble for FedEx and other employers attempting this strategy.

These decisions are part of a slowly-increasing level of scrutiny from the courts towards corporate efforts to save money by characterizing front-line workers as independent contractors and thus avoid normal employment costs.  In another recent decision, the National Labor Relations Board’s general counsel issued an opiniondeciding to treat McDonald’s Corp. as a joint employer of its franchisees’ fast-food workers for the purposes of NLRB violation claims.

FedEx has already indicated that it plans to appeal these decisions.

Texas Loses Its Suit Against The EEOC Over Agency’s Criminal Background Check Guidance

The fight rages on with regard to the EEOC’s position on hiring checks based on criminal backgrounds. In a very high profile cases addressing this issue filed against the EEOC by the State of Texas, Judge Sam R. Cummings of the U.S. District Court for the Northern District of Texas issued a decision in State of Texas v. EEOC, Case No.5:13-CV-255 (N.D. Tex. Aug. 20, 2014), granting the EEOC’s motion to dismiss the state’s lawsuit.

The state’s lawsuit was based on the EEOC’s “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Under Title VII” and argued that the agency did not have the authority to issue the Guidance and that the EEOC’s position that Title VII trumps conflicting state laws violates Texas’ state sovereignty. Judge Cummings rejected the State’s arguments in this first-of-its-kind attack on the EEOC’s authority.

It should be noted that the state went to some lengths to file the case in such a way as to have it come before Judge Cummings, presumably because the state’s legal team believed he would be sympathetic to their argument. His dismissal of the action at a very early stage of the litigation should, therefore, send a strong signal as to how federal judges will likely view suits of this nature against the EEOC.

Source: Seyfarth Shaw’s EEOC Countdown Blog

President Obama Signs Fair Pay And Safe Workplaces Executive Order

President Barack Obama on July 31, 2014 signed the Fair Pay and Safe Workplaces Executive Order, continuing with the “year of action” to move forward with authorized and necessary reforms to labor and employment laws despite Congressional gridlock. Since his State of the Union pledge, the President has signed several executive orders impacting federal contractors that will raise the minimum wage, ban discrimination against LGBT workers, and prohibit retaliation for discussing compensation.

The Fair Pay Executive Order requires prospective federal contractors to disclose labor law violations and will give federal agencies more guidance on how to consider such breaches when awarding federal contracts. Significantly, the Executive Order extends the Franken Amendment to companies with federal contracts (not just defense contractors) over $1 million, prohibiting them from requiring their employees to enter into pre-dispute arbitration “agreements” for disputes arising out of Title VII of the Civil Rights Act of 1964 or from torts related to sexual assault or harassment (except when valid contracts already exist).

The Franken Amendment, first enacted in 2009, bans defense contractors receiving federal contracts over $1 million from forcing their employees to arbitrate the same types of claims. The Executive Order builds on a policy already passed by Congress and successfully implemented by the Department of Defense, the largest federal contracting agency, and will help improve contractors’ compliance with labor laws. The White House fact sheet on the Executive Order can be found at www.whitehouse.gov.

The National Employment Lawyers Association and its Fair Arbitration Now coalition partners issued a statement praising the President’s action, urging Congress to ban forced arbitration for all employment disputes by enacting the Arbitration Fairness Act (AFA, H.R. 1844/S. 878).