One headache of an FMLA case

SEPTA fired Ephriam Rodriquez from his job as a bus driver for excessive absences. Rodriguez sued, claiming that the termination violated his rights under the FMLA because a migraine headache caused his final absence (a fact of which he advised SEPTA prior to his termination). 

The 3rd Circuit concluded that the FMLA did not protect Rodriquez's absence because his migraines did not qualify as a "serious health condition."

The 11th nominee for the Worst Employer of 2024 is … the high-risk terminator

"There might be something wrong with my daughter's heart." 

That's the message Chelsey Beck sent to her manager the morning she was supposed to start new-hire training at Victra, a Verizon retailer. She needed to go to her doctor immediately and would need to miss training that day.

The manager's response? "I'm so sorry to hear about that and I hope everything is okay. Please let me know if you need anything. I'll send positive vibes your way and hope it was a mistake."

So far so good.

But he continued.

WIRTW #734: the 'working for the parents' weekend' edition

It's a rite of passage for all moms and all dads of college students — Parents' Weekend. We spent last weekend at Ohio Wesleyan's Parents' Weekend with Norah. We ate, we shopped, we ate some more, and we shared a cup of coffee with her French professor. It was a great weekend, and you can hear all about it on the most recent episode of the Norah and Dad Show, which you can find on Apple Podcasts, Spotify, YouTube, Amazon Music, Overcast, the web, and anywhere else you get your podcasts.

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Here's what I read this week that you should read, too.

SCOTUS to weigh in on the burden of proof in "reverse" discrimination cases

The purpose of our workplace discrimination laws is to ensure that all employees are treated equally, right? Maybe … but maybe not.

Next term, the Supreme Court will hear the appeal of Marlean Ames, a straight woman who sued the Department of Youth Services for sex discrimination under Title VII. She claimed she was discriminated against her because of her sexual orientation, alleging that she was passed over for a promotion, demoted, and that a gay man was then promoted into her former position.

Ames claimed sex discrimination, but the 6th Circuit disagreed, citing her failure to establish the necessary "background circumstances."

What are the "background circumstances" needed to show that an employer is among the small subset that discriminates against the majority? According to the 6th Circuit, "Plaintiffs typically make that showing with evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group." Ames lost because she showed neither.

Tipped wages and sexual harassment

"Are you on the dessert menu? Because you look yummy."

First, ick!

 
Secondly, these are the types of comments to which customers expose servers in the hospitality industry on the regular. In fact, the restaurant industry has more sexual harassment claims than any other industry, with as many as 90% of women report experiencing some form of sexual harassment. In large part, I blame tipped wages.

WIRTW #733: the 'truth is out there' edition

I think I saw an UFO yesterday morning.

 
Like most workdays, I let the dog out at 6:30 AM. When I went to let him back in, something in the dark, pre-dawn sky caught my attention. I saw two brightly lit orbs hovering at an altitude similar to an airplane. I say "hovering" because they weren't still like stars, nor were they flying across the sky like airplanes. There was movement, but it was different—almost as if they were floating. Then, they started to move, oddly and unnaturally, yet in perfect sync. I rushed to grab my phone to record it, but by the time I returned, they were gone.

I have no idea what I saw. It definitely wasn't stars or airplanes—they don't move like that. Could it have been drones? Maybe, but they seemed too high up. Plus, who flies drones at 6:30 AM?

I'm not arrogant enough to believe we're the only intelligent life in the vastness of our galaxy, let alone the universe. But to witness something like that in my little corner of the Earth? I'm not sure what to make of it. I'm not prepared to say I saw a UFO for certain, but I'd like to think I did.

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Here's what I read this week that you should read, too.

Why?

"Jon, why do you post all this stuff about awful things employers do? Aren't you a management-side lawyer and advocate?"

Here's why:

Spying on your sick employees is a recipe for disaster

Do you remember the episode of The Office where Dwight stakes out Oscar's house to see if he's faking a medical condition and committing insurance fraud?

Believe it or not, something similar is happening in real life at Tesla. The managing director and human resources director of one of its foreign gigafactories recently targeted 30 employees on sick leave for home visits. While the HR director claims the visits had "nothing to do with general suspicion," the managing director has a documented history of intolerance toward factory workers who "couldn't get out of bed."

Needless to say, the employees did not appreciate the visits. "You could just tell by the aggression," the HR director said. Employees slammed doors, threatened to call the police, and questioned why the visits weren't scheduled in advance.

Use caution when poaching competing employees

Here are 25 million reasons to be careful when poaching your competitor's key employees.

In a recent federal case, medical device company Cynosure snagged a $25M jury verdict after its rival, Reveal Lasers, and two former sales managers were found to have violated noncompete, nonsolicitation, and nondisclosure agreements.

The result? A hefty price tag for raiding Cynosure's sales and marketing teams.

WIRTW #732: the 'day in the life' edition

How does a college student spend her day these days? Tl;dl: sleep and classes. 

On this week's episode of The Norah and Dad Show, Norah gives us a peak into a day in her life as a college student. We also discuss our brief visit with her last weekend at her brother's victorious soccer game. You can listen via Apple Podcasts, Spotify, YouTube, Amazon Music, Overcast, the web, and everywhere else you get your podcasts. While you're there, hit the "subscribe" button to make sure you get each new episode automatically delivered to you as soon as it drops.

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Here's what I read this week that you should read, too:

A second Apple Store just ratified a union contract — via The Verge

Cleveland Institute of Music's Tumultuous Era Continues With Contentious Union Vote This Week — via Scene Magazine

How the Next Generation of Managers Is Using Gen AI — via Harvard Business Review

Growth and Impacts of AI Use in the Workplace — via EntertainHR

Why AI is Here to Stay in Legal Blogging — via Real Lawyers Have Blogs

No, not all companies are abandoning diversity, equity and inclusion. Here's why. — via HR Dive

Be Reasonable, People! AI's Impact on Legal Fees — via Attorney at Work 

Is it OK to have sex while working from home? — via Ask a Manager

Working from home is the great social experiment of our age – it's too soon for the state to wade in — via The Guardian

Why would an employee sue his employer for offering him 100% telework as a disability accommodation? — via Eric Meyer's Employer Handbook Blog

FMLA abuse: 5 things this employer did right — via Employment & Labor Insider

What's the Difference Between Internal and External Employee Investigations? — via Workology

Who Is Suing Elon Musk Today? Cards Against Humanity, COME ON DOWN! — via Above the Law

Johnny Cash Becomes First Musician to Receive Statue at US Capitol — via Consequence

BA Report: Midwest Records Production Declines Across All Classes — via Brewbound

Anti-Alcohol Activists Set to Cripple the Beer Industry in 2025 — via Beervana