Donna Ballman has long since earned her place as one of the nation’s leading employee-side attorneys, which also included a spot in our past guide to the nation’s 500 leading plaintiffs’ lawyers. In addition to her litigation talents as the head of Donna M. Ballman, P.A., the Fort Lauderdale-based attorney has also earned recognition in recent years for her work as a writer.
Her 2012 book “Stand Up For Yourself Without Getting Fired” was the winner in the 2012 USA Best Book Awards law category, while her employment law blog made it to the ABA Journal’s Blawg 100 list of the best legal blogs. An earlier book, “The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers,” helps people write accurately about the justice system. She can be found on Twitter at @EmployeeAtty.
Lawdragon: Starting first with your practice, can you discuss any trends you are seeing in employment law from the employee side? Are there certain types of cases you are handling more of these days?
Donna Ballman: I’m seeing more noncompete cases than ever these days. It seems that more employers are trying to use noncompetes to force employees to stay in terrible working conditions. They’re also using them to prevent competition. I think most noncompetes are unenforceable, but many employees don’t have the resources to fight them. I hope the state legislatures and Congress will step in and make laws to protect employees.
On the discrimination side, I’m still seeing lots of pregnancy, age and disability cases. I think that will continue because employers see people in those categories as potentially costing them more in healthcare.
What we’ll see more of are employment issues relating to gay marriage and legalized marijuana as those laws spread across the country. These laws affect employers and employees in important ways, and many people aren’t aware of their rights under the new laws.
LD: The Lilly Ledbetter Act was a source of debate throughout the Presidential campaign. Have you seen anything in terms of the law’s impact yet on numbers of employee claims? Do you expect it to have a significant long-term impact?
DB: From my perspective, it hasn’t made a huge difference in the number of claims. However, it makes a great deal of difference in how far you can reach back to remedy longstanding discrimination. I think, in the long term, it will have an impact in making employers look more carefully at their pay and promotion practices.
LD: Your book “Stand Up For Yourself Without Getting Fired” covers a range of issues. Can you share a few things that employees unhappy in their current jobs – and who fear either getting fired or who strongly desire to leave – do wrong in the lead-up to their departures?
DB: The main thing people do wrong is assume they have rights they don’t actually have. If they complain about, say, bullying, then the employer is allowed to retaliate because bullying is legal. However, bullies tend to pick on the weak and the different. In the book, I suggest people look for ways to complain that are legally protected. If the bully sees you as weak because you have a disability, took Family and Medical Leave, are pregnant, or have a disabled family member, then complain about the fact that you are being harassed due to disability, pregnancy, or FMLA. If the bully is picking on women, people of a particular race/national origin/religion, or some other protected difference, then complain about sex/race/national origin/religious harassment. ‘Stand Up For Yourself Without Getting Fired’ is all about being able to handle the crisis situations that arise at work, whether at the interview, when a bunch of papers are shoved at you to sign, or at discipline, promotions, termination or even post-termination. I hope it helps people so they don’t need someone like me. If they do need a lawyer, I hope it helps people be better prepared by assisting them in gathering evidence and proving their claims.
Another important thing people sometimes do wrong is keep their evidence and notes about discrimination, whistleblowing, unpaid wages or other illegal employer practices in their desks or on their computer at work. If you’re fired or laid off, when they escort you out you’ll lose it all. I suggest keeping it in a notebook in your briefcase or purse, and taking any evidence home and keeping it there. I’ve known evidence to be “accidentally” erased or shredded as soon as the employee left.
LD: My guess is that a lot of employees may be upset with how their past jobs ended, or how they are being treated in their current jobs, but they may not really know for sure whether they should hire a lawyer. How does one go about making this decision?
DB: “Stand Up For Yourself Without Getting Fired” is one place people can look to see if their former company did something illegal. I also have a blog where I write about employment law issues. There are also quite a few agencies that have useful information on their websites. EEOC handles discrimination. Department of Labor handles wage/hour/overtime issues and Family and Medical Leave. The National Labor Relations Board handles cases where people are fired for engaging in concerted activities with coworkers. When in doubt, I suggest talking to an employment lawyer in your state. Employee-side employment lawyers can be found at http://www.nela.org. That’s the National Employment Lawyers Association, and all the members handle primarily employee-side cases. You don’t want to talk to a management-side attorney, because you might accidentally talk to your employer’s lawyer.
LD: Your bio references a number of interesting cases. Is there any that stands out as your favorite, or one that seems to come up most often over drinks or at other social occasions when discussing past work?
DB: The case I handled that got the most press and still comes up most in conversations was the one where I represented a group of employees who were fired for wearing orange shirts to work. It turns out they were wearing orange to protest working conditions (orange to mimic prison uniforms). We brought claims under the National Labor Relations Act, because that kind of concerted activity to protest working conditions is legally protected. That case got coverage all the way in the UK and Ghana. I think it got so much coverage because so many people don’t realize that at-will employment literally means you can be fired because your employer didn’t like your shirt that day, was in a bad mood, or just because they felt like it. Lots of people still ask me about the case and what happened. Short answer: It settled.
LD: If different than the above, can you describe for our readers what matters you handled for Bill Clinton?
DB: Oh, gosh! That was a long time ago. I was his Florida General Counsel in his first campaign. There was one lawsuit where I represented him personally. It was a challenge to his eligibility to become Commander-In-Chief. I like to say I represented him personally for about 10 minutes, because the case lasted about that long before it was dismissed. As his General Counsel in Florida, I handled issues like setting up an election day legal team to be in place to deal with issues as they arose, helping make sure Florida’s convention delegates were properly selected, and other day-to-day issues that arose in the campaign.
The most fun I had was getting to spend a day with Hillary Clinton, which happened to be the day she met Marjory Stoneman Douglas and Janet Reno. Hillary Clinton is a wonderful, funny and smart person. Spending a day with her was one of the highlights of my life. Of course, I also got to meet President Clinton and now-famous people like George Stephanopoulos and James Carville. My husband and I got to spend two nights at the White House and attended some parties there after the President was elected. It was the experience of a lifetime.
LD: Have you stayed in touch with or remained supporters of the Clintons? Do you have a view on whether Secretary Clinton should run in 2016?
DB: I did see the President a couple years ago at a fundraiser. I run into Secretary Clinton’s brother and sister-in-law occasionally at political events since they live down here. Her other brother used to be my process server, but he’s moved on to bigger and better things. I miss him, since he was a terrific process server! I was on Secretary Clinton’s Finance Committee when she ran last time, and would be proud to support her again in 2016. She’d make a wonderful president. Of course, she’d also make an excellent Supreme Court Justice.
LD: What was your motivation for writing “Let’s Quill All the Lawyers”? Can you share a few of the really common mistakes that works of filmed entertainment make when portraying the courts?
DB: I was actually approached by the publisher to write “The Writer’s Guide to the Courtroom.” She and I were members of the same online writer’s colony. The author who was supposed to write the book didn’t get it to her on time, so she asked me to do it. She’d read some of my fiction. She said she wanted a “real writer” to do it. How could I say no? Don’t all lawyers (and writers) respond to blatant flattery? I thought it was worth doing because so many TV shows, movies and books are frustrating for lawyers. Since there are a couple million of us out there, I hope that writers will use my book as a resource to get the legal stuff right so they don’t turn off the lawyers who are also readers and viewers.
LD: Do you have a favorite movie or TV show based on how well it portrayed complex legal procedures correctly, or for having uniquely captured something true about the legal system?
DB: I blog a lot in my writing blog about The Good Wife because I find it to be a watchable show from a lawyer’s perspective. The writers seem to really care about doing their homework and getting it right, within the confines of having to be entertaining for viewers.