Happy Leap Day (or, Happy Exempt Employees Work Free Day)

Today is Leap Day, an every-fourth-year occurrence that adjusts for the astronomical anomaly that it takes the Earth 365.25 days, and not 365, to circumnavigate the sun.

What does this have to do with employment law, you might ask?

WIRTW #402 (the “starman” edition)

I realize that these Friday posts have started taking on a decided rock ‘n’ roll feel. It's a hobby, what can I say. If you prefer, you can skip lede and go right to the list of what I read this week.

Wednesday night, the Brit Awards (aka, the British Grammys) were held in London. They did an amazing tribute to David Bowie, which started with a medley played by members of his backing bands throughout the years, and ended with a stirring version of what might be his best song, Life on Mars?, sung by Lorde. I promise, it’s worth a few moments of your time.

Here’s the rest of what I read this week:

Language matters when drafting restrictive covenants

Consider the following language in a non-solicitation agreement:

Neither PARTY will directly solicit for employment a current or former employee of the other PARTY who has performed any work in connection with this AGREEMENT. This provision will remain in effect during the term of the SERVICES and for one (1) year from the date of said former employee’s separation of employment from P&G or CONTRACTOR.… Further it is acknowledged that simply hiring an employee of the other PARTY is not a restricted activity in the absence of an improper solicitation as described above.

“Lady Murderface”, Yelp, and the National Labor Relations Act

By now, you’ve likely heard about the employee fired by Yelp for her very public blog post directed at her former employer’s CEO, criticizing her $24,000 annual salary. Here’s a particular biting excerpt:

I wonder what it would be like if I made $24,000 more annually. I could probably get the headlight fixed on my car. And the flat tire. And maybe even get the oil change and renewed registration — but I don’t want to dream too extravagantly. Maybe you could cut out all the coconut waters altogether? You could probably cut back on a lot of the drinks and snacks that are stocked on every single floor. I mean, I could handle losing out on pistachio nuts if I was getting paid enough to afford groceries. No one really eats the pistachios anyway — have you ever tried answering the phone fifty times an hour while eating pistachios? Those hard shells really get in the way of talking to hundreds of customers and restaurants a day.

EEOC is now an open book for employees, grants access to employer position statements

Back in the day, if an employee wanted to obtain a copy of an employer’s EEOC position statement, the employee had to go through a process under the federal Freedom of Information Act. For starters, the employee had to wait until after the EEOC issued a right to sue letter, and the EEOC could deny the request for a variety of reasons.

By back in the day, I mean last week. Because, last week, the EEOC implemented a yuge (inner Trump voice) policy change, which provides for the release of an emplyer’s position statements and non-confidential attachments to an employee, upon request, during the investigation of a charge of discrimination. Employees or their representatives must request the document. The agency will not automatically turn it over. But, employees avoid the formality of the FOIA-request process. FOIA, on the other hand, still governs employers’ requests for copies of employees’ submissions (How is that fair?)

Two reasons not to forget about the ADA’s interactive process

Two recent EEOC cases illustrate the importance of employers engaging in the ADA’s interactive process to determine if one can offer a disabled employee a reasonable accommodation.

WIRTW #401 (the “rock off” edition)

Last Saturday night Norah performed to a crowd of 1000-plus inside the Rock & Roll Hall of Fame. We weren’t allowed backstage, but heard that she was pacing a trench of nerves into the Rock Hall’s floor before her band took the stage. Was she nervous about having to perform in front of a crowd that large in the most important gig of her young life? Nope. “I don’t get nervous about that, dad.” She was just nervous that the cold she’d been fighting would cause her voice to crack. It didn’t, and she rocked the Rock Hall.

The future of rock is in very good hands, the 15-second video evidence. @hsrockoff @schoolofrockcle @rockhall #thisiscle

A video posted by Jon Hyman (@jonhyman) on Feb 14, 2016 at 6:52am PST

Here’s the rest of what I read this week:

Essential reading: Harvard Business Review’s step-by-step guide to fire someone

File this under posts I wish I’d written. Yesterday, the Harvard Business Review published A Step-by-Step Guide to Firing Someone.

Firing an employee is the most difficult job any business owner, executive, manager, or HR person has to do. I’ve been there. It absolutely sucks. (And it absolutely sucks even more when the fired employee breaks down and starts crying). HBR synthesizes the process in three essentials tips to handle the decision, and five (not-so-easy) steps for the termination itself.

Hug it out, just not necessarily at work

“Do hugs belong in the workplace?“ is the headline of a story on Cleveland.com that caught my attention.

The hug just may be on its way to competing with the handshake as a common workplace greeting. The percentage of people who say they would hug co-workers—that they either know well or haven’t seen in awhile—nearly doubled from five years ago, according to a recent poll.

Of course, one person’s hug is another’s creepy gesture or, worse, inappropriate advance. Where is the workplace line?

Intermittent FMLA does not permit sleeping on the job (usually)

Let’s say you have an employee approved for intermittent FMLA for migraine headaches. Let’s also say co-workers of said employees find her asleep at work during her shift. When you fire the sleeping, migraine suffering employee, do you have potential worries under the FMLA?

According to Lasher v. Medina Hops. (N.D. Ohio 2/5/16), the answer is a resounding “no”. The issue, however, is not as cut-and-dry as this case makes it seem.

Scalia

I was on my way to the Rock and Roll Hall of Fame to watch my daughter perform at the High School Rock Off when my phone started going nuts with updates, letting me know that Justice Antonin Scalia had unexpectedly passed away. Everyone will not agree on his legal and constitutional interpretations, but everyone universally agrees that without him, Supreme Court oral arguments will be much less interesting, and Supreme Court opinions will be a whole lot more boring. I cannot remember a Supreme Court without his sharp wit and styling prose, which cannot be replaced.

WIRTW #400 (the “400th” edition)

Here’s the rest of what I read this week:

You cannot afford to sleep on harassment complaints

Yesterday, I suggested that harassment prevention is a 365-days-a-year job for employers. Apparently, some employers still need to learn this lesson.

Case in point? Smith v. Rock-Tenn Services, decided yesterday by the 6th Circuit.

I hate Valentine’s Day, and employers should too

I hate Valentine’s Day. It’s not a visceral hate; it’s more of a disgustful annoyance. And, no, it’s not because I’m not romantic. Quite the opposite. I believe that we don’t need a special day to celebrate love, but that you do so by how you treat your other half all 365 days of the year. (I love you Colleen). Thankfully my wife’s not a fan of the Day either, so I lose no points for omitting the clichéd dozen roses or candle-lit dinner.

Do you know who else should not be a fan of Valentine’s Day? Employers. Here are three reasons why.

Lying about medical leave fatal to disability claim

On Saturday my 7-year-old made his first reconciliation. To what could a 7-year-old possibly have to confess? If you list the 10 big ones, lying would probably take the top spot for the 7-year-old set. It’s a life lesson, however, that some never seem to learn.

Case in point? Mattessich v. Weatherfield Township (Ohio Ct. App. 2/8/16) [pdf], in which a depression-suffering police officer was terminated for lying about his medical leave.

A labor union filed an Uber-huge representation petition with the NLRB

Politico New York reported last week that International Brotherhood of Electrical Workers, Local 1430, petitioned the NLRB to represent 600 New York area Uber drivers. You can read the representation petition here.

Uber is locked in a battles all over the county with its drivers, defending lawsuits claiming that its drivers are employees for wage-and-hour purposes. This case, however, brought in the most employee friendly forum Uber drivers could possibly find, is the first attempt by drivers to organize. And because of the employee-friendliness of the NLRB, this story has the potential to be absolutely huge.

WIRTW #399 (the “happy” edition)

So we’re in the car Wednesday night, and I mention to the fam that I’m excited because, today, a new Starbucks is opening downstairs from my office. Without missing a beat, and with complete sincerity, Donovan, my 7-year-old, says, “Oh dad, I’m so happy for you.” I love my kids.

Here’s the rest of what I read this week:

Can an employer prohibit an employee from job hunting during FMLA leave?

Earlier this week, an employee out on FMLA leave posed the following question to the Evil HR Lady:

While I am out for surgery, I was informed of a new job in another hospital. It looks like no one has applied for the position.… Can I apply for this job while I am on leave? What is the consequence of doing so? Can they take my pay back? On one of the FMLA paperwork, it states no job hunting while on FMLA. Is that true? I do not want to be in some legal battle.

Now is the time to restore balance to Ohio’s employment discrimination law: Endorsing the Employment Law Uniformity Act

For lack of more artful description, Ohio’s employment discrimination law is a mess. It exposes employers to claims for up to six years, renders managers and supervisors personally liable for discrimination, contains no less than four different ways for employees to file age discrimination claims (each with different remedies and filing deadlines), and omits any filing prerequisites with the state civil rights agency.

Monday, State Senator Bill Seitz introduced Senate Bill 268 [pdf], the Employment Law Uniformity Act. It is a business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.

The top 10 mistakes employers keep repeating

Today is Groundhog Day, which, because of the eponymous Bill Murray movie, has become synonymous with repeating the same mistakes over, and over, and over…

In that spirit, I thought we’d take a look at the 10 biggest mistakes that employers keep making.

In no particular order:

EEOC proposed significant pay equality changes to EEO-1

If your company has 100 or more employees, you should be very familiar with the federal government’s EEO-1 survey. The EEOC requires that you annually complete and file this form, which requests demographic on your employees, broken down by protected classes and job categories.

Last Friday, the White House made a game changing announcement about the information it proposes you submit in your EEO-1 filings.