In the modern-day world, it is crucial to remember that the law protects you. As an employee, you have your worker’s rights. So what are your rights as an employee?
You have to understand what your rights are in your state and if you don’t like them, get involved in politics, vote better, and you know, get involved with your union if you don’t have a union, form a union, fight for your rights.
Donna M. Ballman, P.A. is an Employee-Side Lawyer and author of an award-winning book, Stand Up For Yourself Without Getting Fired. In this video interview with Pissed Consumer, Donna explains the employment law and comments on common workplace issues.
Watch the video to uncover expert tips and the story of the ex-Amazon employee, Christian Smalls who fights against Amazon for worker’s rights and unions.
Below is the guide to top employee’s questions and attorney’s answers.
- Common workplace issues
- Top reasons for being fired
- At-Will Employment law
- What to do if you are fired unfairly
- Who is protected from employment discrimination?
- When you should quit
- Should you dispute your termination
- How to report a workplace issue
- How to complain against an employer?
- Amazon employee on favoritism and toxic culture
- Amazon employee on sexual harassment
- Christian Smalls vs. Amazon
- Can you be fired for unionizing
- Reporting unsafe working conditions
- How has COVID-19 impacted decisions for firing
- Can an employer demand COVID-19 vaccination
- Tips for employees
Donna Ballman: So I do employee-side employment law. I've been practicing law for 36 years in Florida, Florida only. And I started out doing both sides, employer and employee-side. And then I realized that employee-side was my bliss, so I've been doing that for quite a few years now.
My book, the idea behind the book was to try to help people before they got into trouble because I had so many times people would contact me and I would say, "Why did you do that?," or, "Why didn't you do that?" And so the idea behind the book is to try to help people before they need me, to try to maybe even help them not need people like me.
I also have a blog, where I cover current issues called, “Screw You Guys, I'm Going Home.” And I talk about all kinds of issues that are in the news, or just issues that I encounter in my practice.
What are the common workplace issues faced by employees?
Donna: Right now, I'm seeing a lot of age discrimination, a lot of disability discrimination, non-compete agreements are really rampant right now. They're very popular with companies and there are a lot of illegal ones out there that violate antitrust laws. And then there are a lot of misconceptions, wrongful termination, breaks, entitlement to breaks, hostile environment, free speech, privacy, right to work, retaliation, and discrimination.
People have a lot of misconceptions about all of those issues. So I spent a lot of time trying to help people understand and work through the laws because most states don't have a lot of employee protections. And so we have to work with what protections exist.
For instance, here in Florida, it's a very anti-employee state. Some states like New York and California are more pro-employee. So you have to understand what your rights are in your state.
...if you don't like them, get involved in politics, vote better, and get involved with your union. If you don't have a union, form a union, fight for your rights from the position of strength, which a union gives you.
Top Reasons Why Employers Fire Employees
Donna: Yes, you can be fired for any reason or no reason at all, but let's look at what the illegal reasons might be. So, first of all, I always ask, was somebody or a group of people treated differently under the same circumstances? So what were you accused of? Have other people who've been accused of that not been fired? Okay. So were they all of a different race, or were they all younger, or have different sex, or national origin, or religion, other protected status?"
If they were all of the different statuses. For instance, a black employee comes, they were fired for something, the white employees just get a reprimand, or they get no write-up or discipline at all. That could be race discrimination. I always say, look for that protected category.
And then the other thing is, have you recently done something that's legally protected? Did you object to something illegal? You might be a protected whistleblower. Did you recently make a workers' comp claim? Did you recently take family or medical leave? And then we have to talk about whether it's protected FMLA leave or not. Did you take leave for a disability? Did you ask for accommodation for a disability or religion?
There are all kinds of protected statuses. You just have to kind of think it through. They don't have to have any reason, they can fire you because they're in a bad mood that day. But if they were only in a bad mood against women and not men, against people of a particular national origin, or against people who just tried to start a union, then that's illegal.
But top reasons, obviously things like theft, sexual harassment is big right now, any kind of serious wrongdoing. Obviously, if they catch you taking trade secrets, or giving trade secrets to another employer.
One of the things that people are always surprised about, if they find out you're looking for another job, a lot of companies will just fire you on the spot because they know that you're on your way out. And so they don't want somebody there who they consider disgruntled, so that's a fairly common reason. But then there are a lot of sad excuses that I see that it's a pretext for something else like discrimination.
- Sexual harassment
- Serious wrongdoing
- Looking for another job
- Sad excuses
So you've got to kind of watch that and, "Oh, they had no reason or they gave me a fake reason." Well, maybe something is going on that underlies the reason. And maybe there's a real reason, like race, or age, or sex, or pregnancy, things like that.
What Is the At-Will Employment Law?
Donna: Every state in the United States, except for Montana, is an at-will employment state, meaning a company can fire you for any reason or no reason at all. They don't have to have a reason. That's every state.
Now, Montana is the only state that has just cause for firing. And it's a very good system that has been in place for years. They didn't sink into the ocean and I tell people about it and they're surprised, but many states do have protection.
So an employer can fire you for any reason that's not an illegal reason.
So I think it's important for people to understand what your state provides and yeah, in the South, the South tends to be fairly anti-employee and the Northeast and California tend to be more pro-employee.
And then there are other states that are kind of vary, but Florida, definitely a very, very anti-employee state, but we still have rights here. And so you have to understand what those are and you have to work within what those rights are to see if you're legally protected.
What to Do When You Are Fired Unfairly?
Don’t cause a scene
Donna: So common mistakes. I mean, the first one is, yelling, screaming, causing a scene. It's just going to look bad. Even if you do have a claim against them that's a potential legal claim, people are going to remember, especially your coworkers and your former bosses, even people that might've been allies are going to remember that horrible scene you created. And that's what's going to stick in their mind and not the illegal firing.
Donna: I tell people, look, in the termination interview, take good notes, write down what they said as the reason, because sometimes they'll say one reason in the termination interview and then give a completely different reason if you file for unemployment, or if you file a discrimination claim, or you file a wrongful termination lawsuit for say making a workers' comp claim.
So write down that reason, because if they give a different reason that could go to their credibility and also could be prevent something called summary judgment, which allows a judge to just throw out your case. So it creates a factual issue.
Keep information safe
Donna: And then I tell people, look if you've been keeping good notes of something that's been going on, discrimination or something like that, make sure you keep them in your briefcase, or your purse, or something that they can't take. They're going to not let you take a lot of stuff. You're not going to be able to print stuff out from your computer. You're going to be limited in what you're allowed to take.
They're probably going to watch you because what they don't want is you are sticking a flash drive in the computer and copying a bunch of trade secrets or confidential information. So they're not going to let you do that for the most part. So if you've been keeping information that is important to you, make sure you have it in a place where they can't take it away.
Donna: And the other thing that sometimes people get so... and it's very upsetting, losing your job is just as traumatic as a death in the family. It's half of your waking hours, your work. So, you're not thinking straight, so if you're not thinking straight, then maybe just take good notes.
But you can ask questions like, am I going to be presented with a severance agreement? When is my insurance cutting off? That's really important for people who have disabilities, they should allow it to stay in place to the end of the month.
And right now, there's a law that says that if you elect COBRA, they have to pay that COBRA payment through September 30th for people who are fired. That's the American Relief Plan. That's not going to last much longer, but it's important that you get those answers. Sometimes employers cut you off the very day you're fired.
And that's something that you can frequently challenge because if you've been paying out of your paycheck for insurance and they cut it off that day, well, wait a minute. I paid through the end of the month, why are you not giving me what I paid for? But it's important if you have a disability, or if you have ongoing medical treatment, you have to know because you don't want to go to the doctor and then get turned away, or get those huge bills.
Who Is Protected from Employment Discrimination?
Donna: So everybody is in some legally protected category and sex is a protected category. So if you're a male and you were treated differently than females, if you were a female treated differently than males, you're legally protected.
Race, if you are white and are treated differently than people of color if you're a person of color and are treated differently than whites, you're in a legally protected category. So, everybody's in some legally protected category.
Then there are special categories, people over 40, that's age discrimination, they're protected. People under 40, not protected from age discrimination. Disability, religion, and lack of religion are a category that's protected. So everybody's protected under the religion category.
There are all kinds of protected categories that you might fit into, so everybody fits into something.
And then the question is, I always say, "Why were you targeted? Why you? What's different about you?"
When You Should Quit Your Job?
Donna: Well, sure, if you've got another job offer and you can, you've got that soft landing, go for it. But sometimes people quit and don't think it through.
There are some times where you have to quit. If you're in danger, physical danger, obviously you don't stay in a situation. Sexual harassment, the Supreme Court would say, "You have to report illegal harassment first before you quit, give them an opportunity to address it, if it's something that doesn't affect you in the wallet, if it's a demotion, the denial of a promotion, a termination, obviously that's a different situation."
But if it's just harassment, something that doesn't affect you in the wallet, then you're supposed to report it and give them an opportunity to address it.
But sometimes, it's so severe, an attempted rape for instance, that you can't stay, you're not safe. So I always tell people, look, if you're really not safe, get the heck out of there. And the other thing is, if it's so grinding on you emotionally, you're getting ready to have a nervous breakdown. Your psychologist or psychiatrist says, “You need to get out of there”, then get out of there.
But you have to understand, you have to think it through because if you leave and put yourself in a worse situation where you're unemployed for a long period of time and you can't afford it, you lose your home, you lose your car, that can also be very stressful.
So you just have to kind of think it through. But in most cases, I would say, if you think something illegal happened, you need to report it first, give them an opportunity to address it before you leave.
Should You Dispute the Workplace Issue When Fired?
Donna: I always tell people, think about whether you can report something in a way that's legally protected against retaliation.
We get a lot of people say, "I was retaliated against," okay, well retaliated against for what? If it's something that's not legally protected, I reported that my boss is incompetent, you can be fired for that and probably will be. And a lot of people do that.
You'd be surprised how many people write these long screeds about how horrible their boss is, that they don't know what they're doing, and then are surprised when they get fired. But you know what you can't be fired for is reporting discrimination that's illegal, discrimination against you because you're you because they don't like you, or favoritism, not illegal, but let's look at the protected categories.
Are you being treated differently than other people of a different race, age, sex, religion, national origin, color, or did you recently disclose a pregnancy, or disability, or some sort of a family member that needs care? Something like that could put you in a legally protected category.
And if you're suddenly being treated differently after you've done something like that, then certainly report it. If they're asking you to do something illegal, if they're asking you to engage in discrimination, or if they're asking you to do something that violates the law, you need to report it.
How to Report an Issue with an Employer?
Report it in writing
Donna: I tell people, report it in writing because 36 years of law practice, I have to say, it's very rare that somebody from HR admits that something was reported in a legally protected way if it's not in writing. Oh yeah, they complained their boss was a jerk, but they didn't say discrimination. So those are the kinds of things, try to think it through before you report something.
And then if you're reporting in a legally protected way, report it in writing.
Make a copy of your report
Donna: Make sure you keep a copy of what you reported, so send an email, formal complaint of race discrimination, that'll get their attention.
File a complaint of FLMA violation
Donna: If you're complaining that you were suddenly treated differently after you took family and medical leave, formal complaint of FMLA violations, put it in writing, put it in that subject matter.
Keep receipts and print them out
Donna: Keep a copy of it. Keep a read receipt, keep a delivery receipt, print them out. So you have proof that you reported it in a legally protected way. And then you can, if something happens after you report it, then it could be illegal retaliation.
How to Complain Against an Employer?
The Waffle House employee left a review (#2635329) on PissedConsumer.com, “I 2alked off the job because I had no help I didn't even get my tips from the credit cards and was told the drawer was 75 short. So I was fired and put on the no refire list and waffle house is my life I would never have done that”.
Donna: An employer is allowed to fire you for a bad reason. So you're in an at-will state, yeah, they can do that. But let's look at it, let's break it down. So you were accused of being short on a drawer. Has somebody else been accused of the same thing who wasn't fired? Did somebody else have access to that drawer at the same time that wasn't accused or wasn't fired? And then was that person, or were those people of a different race, or sex, one of those protected categories, national origin?
If somebody else was treated differently, then it might be an illegal termination, but they don't have to get it right. The other thing is, did they conduct the investigation differently? So yeah, okay, they got it wrong.
In other cases, have they interviewed all the witnesses? Have they given you an opportunity to respond and say, "Well, so-and-so can vouch for me?" And in your case, they didn't give you that opportunity. And if so, again, look at those protected categories.
The other thing is, did you recently do something protected, like ask for a religious accommodation, ask for a disability accommodation, take family and medical leave, make a workers' comp claim? Did you object to something illegal that puts you in a whistleblower category?
So I'm not going to say that it's okay what they did, obviously getting it wrong as terrible, but you have to kind of look and see if there's some legally protected category you fit into. And there are lots of options. So you might want to start thinking about that, what possible legal categories you might fit into, who else was treated differently?
Favoritism and Toxic Culture: Amazon Employee Review
Amazon employee: So at Amazon, there is a position called learning ambassador, and they basically took off all of the old learning ambassadors, including myself, to put people that they liked onto it, who get to walk around the warehouse and not work at all.
And get to order you around as well as they make it very clear who their favorites are. They don't flat out tell you that they don't care about you and then allow this person to do whatever.
Donna: So favoritism, not illegal, but it's just like bullying, favoritism. People play favorites or bully for the same reasons that people played favorites or are bullied on the playground. Who do you treat differently? Well, people pick on the weak and the different, right.
And who is treated with more favoritism? People who are alike. So, who is weak? Well, somebody with a disability, somebody who's older, somebody who has a family member that has a disability that they have to care for, somebody who's pregnant, who's different, race, sex, religion, national origin.
So you go back to those legally protected categories because usually, I find that you can point to a reason why you're being singled out and frequently it's an illegal reason. If you don't fit into one of the legally protected categories, then one of the things you can do is discuss it with coworkers who are also being not treated with favoritism.
So the National Labor Relations Act protects people in unions, but also people who are not in unions. It's illegal to retaliate against many employees, probably most employees who are covered by the National Labor Relations Act, for discussing working conditions with coworkers.
So for instance, if you call a meeting with coworkers, or if you guys are discussing working conditions, whatever it is and you get together and you say, "Yeah," and then maybe they designate somebody to go to management or everybody signs a letter. Somebody goes to management on their behalf and brings up these issues. That could be legally protected behavior.
Now there are some exceptions to coverage under the National Labor Relations Act. So you might want to look at it, nlrb.gov has very clear who's protected, who's not. But most people who work for private employers are legally protected by that. So, there are things you can do, even if there's no law that covers you. They can't fire you for discussing working conditions with coworkers, assuming you're not in management. If you're a supervisor, you're not legally protected.
Sexual Harassment: Amazon Employee Review
Amazon employee: With the sexual assault, I've had a guy who's old enough to be my father follow me out to my car, hand me very suggestive notes. Another guy was rooting him on saying that I slept with everybody at the warehouse and how I liked to play hard to get and how he should follow me home and all this type of things.
And I went to HR about it and it was basically, "You're just trying to start drama. And nothing's happened, this isn't sexual assault because nothing's physically happened to you. You're just uncomfortable."
Even though I had evidence of all the notes and I've had him follow and tried to get into my car during lunch. And nothing happened to those two guys, but they had no repercussions at all.
Donna: Well, a sexual assault is different from sexual harassment, but both are legally protected. So, a sexual assault is when there's been physical contact, or threat a physical contact. This probably doesn't cross that, but I think it is sexual harassment.
So, the question is, are you being targeted due to your gender? And of course, this person is, so if they were of a different gender, they would not have been targeted by this person unless he does it to everybody. I guess there's some possibility, but it doesn't sound like that.
So, you will have employers that say, "Oh, they're an equal opportunity harasser," but usually there's no such thing. Then the employer should have done something. It is sexual harassment, the person's being targeted and she's reported it now. So, I assume it's a she, but either way, he or she, has reported it now.
And the employer's on notice that this guy has a propensity to engage in sexual harassment. If he does it again, they could be liable for punitive damages. So the employers should take it seriously.
I would suggest that she put it in writing and that was a formal complaint of sexual harassment, so they can't say it didn't happen, "This will confirm our conversation that I reported this. And you told me there was nothing you can do. I believe it's sexual harassment, but you said there's nothing you could do because it wasn't sexual assault," something like that, just a document.
Send it to HR and keep a copy so that you have evidence that this happened. And then they'll probably say, "Oh no, oh, you never reported that. Now we're going to investigate." So, once it's in writing, they take it a little more seriously.
The United States Equal Employment Opportunity Commission covers all kinds of illegal discrimination. You have, in some states, 180 days to report it. In some states, 300 days to report it. So you need to know which kind of state you're in, but you have to... that filing with them is a prerequisite to bringing a lawsuit for illegal discrimination, including sexual harassment, racial harassment.
Christian Smalls vs. Amazon: The Fight for Workers Rights
Christian Smalls: Leading up to my firing, I sat in the cafeteria for 10 hours a day telling the workers the truth that somebody already tested positive in the building, after learning in one of my manager meetings, that somebody was in the building positive two weeks prior.
At the end of that week, they decided to quarantine just me and nobody else, nobody that was in my department, nobody that came to the office with me, not even the person that I arrived to work with every single day. So I knew they were using this quarantine to silence me and stop me from organizing the workers.
So that's when I decided to take further action anyway and still hold the walkout on March 30th. After the walkout, two hours later, I was terminated over the phone.
Christian: It's funny. I just made that Twitter account when I got fired. I didn't think about it. I didn't talk to anybody, I didn't discuss it with anybody. I just honestly just made it and it's just stuck with me. I kind of got thrown into the media spotlight when I got fired when I did the walkout.
It was probably one of the biggest stories of 2020, one of the biggest stories of the coronavirus when it came to the states and the labor movement. So I kind of got thrown into this media spin. My whole life changed in less than 24 hours, so I didn't have time to do anything but just react.
As far as how I got involved with the movement, it was pretty much after Jeff Bezos and his top general counsel decided to have a smear campaign on me calling me not smart, articulate. That memo leaked out. And ironically, they said that they wanted to make me the face of the whole unionizing efforts against Amazon.
So that's exactly what I'm doing now. Fast forward to now, I'm unionizing the building where I was fired. So every day, outside of Staten Island, JFK, I'm outside, getting workers signed up for our newly created worker-led union, called Amazon Labor Union.
Donna: It's a very interesting case. And there've been other attempts to unionize Amazon done through more traditional, large unions. This is an attempt to create a union from scratch. I think it's interesting what Mr. Smalls is doing.
Number one, I think it's pretty heroic what he's doing. He didn't just take being fired and go away. A lot of people would do that, now he's fighting and he's organizing from the inside. This is a person who knows people inside the union. And so he's got people that are inside organizing.
Some of the other attempts have been to, people from the outside, big unions coming in and saying, "You should organize," but these are people inside the union or inside the workplace saying, "We need to unionize." And Chris Smalls is out there helping them get the resources that they need.
And I think there's even a GoFundMe to help them. And they're fighting for worker rights and they're fighting for unions.
I think unions are one of the things that people can do to be legally protected.
And throughout the years, the last several decades, everything has been done to weaken unions to fight them, to work laws. But this is a very interesting thing. I think they're right now in front of the National Labor Relations Board, and one of the things they're fighting for is that employees have a right to representation when they're subject to disciplinary action.
And that's not just for union people. They want all employees to have that right. Right now, only some employees have that right depending on their occupation. So they say all employees should have that right to representation.
And it's really important. I mean, that one issue is something that hits me a lot because people go into a disciplinary interview. And one of the things I just covered in my blog is, I did a post called, “Loss Prevention Is Lying to You.”
People go into a meeting with loss prevention and you're accused of stealing something and you didn't do it. But they say, "If you just sign this paper admitting to it, that's the only way to keep your job." Well, they're lying.
You're going to be fired as soon as you sign that. Not only that, but they're going to then come after you for the money that you just admitted you stole. It's a mistake. If you had representation, whether a union, or even a friend that came in with you as a witness, or a lawyer, those are all things that would help you.
So many people go into these disciplinary interviews and they're so shaken, they don't take good notes. But having a witness, this is what they told me, this is what happened, really helps. And all employees should have that right. And so that's one of the things that the Amazon workers are fighting for right now for people.
Can You Be Fired for Unionizing?
Donna: Can you be terminated for organizing or unionizing other workers? No, that's illegal. The National Labor Relations Act is there and even if you're not covered by the National Labor Relations Act, you may be covered by state law.
For instance, in Florida, government employees, state government employees are covered under state law and then private employees are covered under the National Labor Relations Act. So no, it's illegal to fire you for discussing salaries with coworkers.
It's illegal to fire you for discussing working conditions with coworkers. It's illegal to fire you for organizing, for going to management, and asking them to improve working conditions on behalf of yourself and your coworkers.
All of those things are illegal, but of course, for all of these things, discrimination, whistleblower, and National Labor Relations Act, they're going to come up with some reason other than that. And then it's a question of who is to be believed. If you can show that the reason they're giving is a pretext for something illegal, then you can win. It doesn't have to be a great reason a lot of the time.
Look, I love Amazon, I'm of their customers, I get Amazon packages pretty much every day. I love them, but do better, treat your employees better and you'll get better work out of them.
I find that dealing with workplaces that are organized, unionized, people are happier. You got better morale and I want people to be paid well and treated well. I just think that that should be a common right. It's a basic human right, but also, companies forget, you have to have happy, healthy people who are paid decently in order to have consumers.
People can't buy things if they're in the hospital, people can't buy things if they don't have any money if they're living from paycheck to paycheck.
I think it's just something in all of our interest to raise that minimum wage and make sure that people in those workplaces that we are consumers of, try to make sure that they have decent working conditions.
How to Report Unsafe Working Conditions?
Donna: There's a government agency called, OSHA, Occupational Safety and Health Administration. OSHA, where you can report safety violations. And you can be legally protected for doing that. But you can also just go to management on behalf of yourself and your coworkers and say, "Hey, this is a dangerous situation. You should do something about that."
Once you do that, if you're complaining not just on behalf of yourself, but on behalf of yourself and coworkers and you've discussed it with coworkers, and they said, "Yeah, this is a fairly dangerous situation," you're protected under the National Labor Relations Act in most circumstances if you work for a private employer.
How Has COVID-19 Impacted Employer’s Decision for Firing?
Donna: I'm seeing a lot of people in their sixties and approaching 60 that are getting fired, lay off, or restructuring. There's just a lot of employers that took those guidances by the CDC saying that people who were in their sixties are at risk, at a higher risk. And they're using that as an excuse to get rid of people.
People with disabilities, same thing. If you're in a category that puts you at a COVID risk, employers are firing people, but it's not legal to do that. So I would say, age discrimination is still illegal. Disability discrimination is still illegal.
Pregnancy discrimination is still illegal, but I'm seeing a lot of that going on, people getting fired for pretextual reasons, or sometimes employers are just blatant about it, "Oh, we can't keep you on because it's too much of a liability risk for us." Well, no, you don't get to do that. It's still illegal.
Can an Employer Demand a COVID-19 Vaccination?
Donna: The shorter answer is yes, with exceptions. So if they are unionized, then that's something that they would have to bargain with the union. But if they're not, then the exceptions would be disability and religious exceptions.
So if they had one of those two exceptions, then you can't require them to be vaccinated and I would say with the caveat that if the employer could show that it's a hardship on them to keep you if you're unvaccinated, then they can still fire you for that.
So all they have to do is show that it's an undue hardship.
So if you've been working remotely all this time successfully, and then they suddenly say, "Oh, it's a hardship for you to keep working remotely," I don't think that's going to fly.
But if they say, "Look, I mean, it's a hardship. You have to be in the workplace. You're a server, or a flight attendant, or something like that," then yes, they can fire you for refusing to get vaccinated.
People have been saying, "Oh, I'm going to wait for FDA full approval." Okay, well, that's no longer an excuse. What else is your excuse? Look, it's to protect your coworkers, it's to protect your customers, clients. I have a lot of people complaining to me about this issue. And I just, I have to say, "Look, if you have a disability, your doctor says you should not get the shot, then get that note and send it to your employer.”
And then you're covered under the Americans with Disabilities Act. If you're a Christian scientist or you have a real religious objection to it, then let the employer know that there are religious reasons. But I think other than that, those are the two exceptions that I can think of that would allow you to refuse to get vaccinated. And even then the employer could say, "Well, it's an undue hardship."
Now, I will say that there are some states, there are some states, that are putting limits on the ability of employers to require vaccinations. But even in Florida, as anti-employee, as we are, the limits are more on the consumer side and the customer side, prohibiting companies from requiring vaccine passports for entry into workplaces and things like that.
Most employers aren't covered by the law. So even under Florida, as anti-employee as we are, we still haven't limited the ability of employers to fire for refusing to get vaccinated in most cases.
So, the Americans with Disabilities Act covers people with disabilities, and that would include if you have a disability where your doctor says, "Look, for whatever reason you medically it's unsafe for you to get the vaccination."
You get that note and you go to your employer and you say, I'm requesting a reasonable accommodation under the Americans with Disabilities Act of not requiring the vaccine, but then you're going to have to discuss with them, well, okay, what is the reasonable accommodation? Working from home?
I know one employer's requiring people to get tested every week, where they aren't vaccinated, some employers are requiring people to get a temperature check every day. So, different employers are requiring different things.
You have to decide what is reasonable and they have to work with you on what's a reasonable accommodation. So if you've been working remotely and you say, "I don't want to get vaccinated. So, if you don't want me in the workplace because I haven't been vaccinated, let me work remotely." And you've been doing that successfully, it's going to be really hard for them to say, "Oh, that's not a reasonable accommodation. It's a hardship on us," because you've already been doing it.
But if it's a job that requires you to be in the workplace and they're just saying, "Look, it's too much of a risk to our customers and to your coworkers, we can't have you in the workplace. Is there someplace that you can work where you won't be exposing other people?" Talk about those other accommodations, but they could still conceivably fire you if there is no reasonable accommodation that would cover that.
So it's not just an instant get out of jail free, or get out of a firing free card. The same with religion. There are religions that don't allow any kind of medical treatment, including vaccines, Christian Science is one of them that I can think of. I imagine there are others. If you have that religious issue, again, you request a reasonable accommodation for your religion. But if they can show that it's a hardship, then they may still be able to fire you.
Top Tips for Employees
Donna: In general, keep good notes. Try to keep track of who's being treated differently than you. And don't make mistakes like walking out, or packing your things, or threatening to quit. Asking for severance could be deemed a quitting, so don't do that. Read everything they put in front of you. And if you don't understand it, take it to a lawyer.
I see a lot of cases where people have signed non-compete agreements saying they won't work for a competitor for a year or two, they never read it. It was stuck in, something called a confidentiality agreement. It can be stuck in a bonus agreement. It can be stuck in all kinds of places, so read before you sign it.
If you don't understand it, say you want to take it to a lawyer and have it reviewed, so you understand it.
Think before you act. If you're upset, don't yell and scream, just take notes about what's happening and then wait until you're calm before you write something. And maybe have a lawyer review it before you send it.
Know what your rights are, read your handbook, understand what your laws are in your state. Try to figure out if you're legally protected or not.
Those are all important things for people to do. And then I would just say, there are states that have good laws, so talk to your elected officials. Vote in your best interests and just the basic as a consumer saying, hey, you if a workplace isn't treating somebody well, then write the president, write them, complain as a consumer.
You can help these people as a consumer as well. And certainly, to the extent that workers have GoFundMe and things like that, you can help them with that. And we should all want to help them because we want to raise everybody up so that everybody is in a better situation.
We thank our expert, Donna Ballman, for helping us better understand how employment law and labor law work. If you have experienced unfair treatment at work or faced any other workplace issue, we suggest you read this guide with Donna’s tips before taking action.
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- being fired
- covid-19 vaccination
- employee's rights
- employment law
- how to complain
- sexual harassment
- unsafe working conditions
- work discrimination
- worker's rights
- workplace issue
- wrongful termination
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