"DEI hire" is the new N-word.

After President Biden dropped out of the 2024 campaign and elevated his Vice President, Kamala Harris, as the presumptive Democratic nominee, supporters of Donald Trump started attacking her as a "DEI hire."

For example, during an interview with CNN’s Manu Raju, Republican Rep. Tim Burchett said this: "100 percent, she was a DEI hire." He's not only one pushing this narrative.

When one person calls another a "DEI hire," they mean they are unqualified, unskilled, and hired only because of their race. They say it because they cannot say publicly what they really want to say. 

What does Project 2025 mean for employers? Discrimination edition

I promise this post is not political … but we do have to talk about Project 2025.

Project 2025 is an initiative organized by the Heritage Foundation aimed at preparing for a conservative presidential administration after the November election. Its goal is to promote conservative policies and ensure that the right personnel are in place to implement those policies from day one of the administration. Some call it a utopian dream, others (🙋‍♂️) an authoritarian dystopian nightmare.

Regardless of where you fall in this philosophical political debate, Project 2025 contains a lot of information of interest to employers — specifically, what changes they could expect to labor and employment laws in a second Trump administration.

Color me unsurprised that businesses are already using 303 Creative to discriminate

If a human identifies as anything other than a man/woman, please seek services at a local pet groomer. You are not welcome at this salon. Period.

Those are the words of Christine Geiger, the owner of Studio 8 Hair Lab, in a post on the business's now-deleted Facebook page. In a still-available comment on another Facebook page, Geiger says, "I have no issues with LGB. It’s the TQ+ that I'm not going to support. For those that don't know what the + is for, it's for MAP (Minor Attracted Person aka: pedophile)." Meanwhile, the business's private Instagram page describes itself as, "A private CONSERVATIVE business that does not cater to woke ideologies." 

We get the point. Geiger doesn't like transgender people and is using her religion and the Supreme Court's decision in 303 Creative v. Elenis to justify her discrimination.

7th Circuit decides the issue of religious rights vs. trans rights … and trans rights won

I really wanted to move on this week from writing about transgender rights. But then the 7th Circuit had to go and decide that a student's right to be called by his or her preferred gender trumps a teacher's religious accommodation request not to do so.

The case is Kluge v. Brownsburg Community School Corp. John Kluge worked as a music teacher at the Brownsburg Community School Corp. In 2017, the school adopted a new policy that required teachers to use students' chosen names and pronouns. Kluge refused to abide, asserting that it violated his Christian beliefs. The school initially granted an accommodation that permitted Kluge to refer to all students by their last names. It withdrew the accommodation, however, after both trans and cisgender students became angered after deciphering Kluge's surname use. Kluge resigned and sued for religious discrimination and retaliation under Title VII.

Tweets, honest beliefs, and terminations

@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!

On July 24, 2016, Kathleen Jungclaus — the 55-year-old then-VP of HR for Waverly Heights Ltd. — tweeted the above. A couple of months later, someone anonymously notified Jungclaus's superiors of the tweet. When confronted, Jungclaus initially provided shifting explanations of the tweet's origins but ultimately admitted posting it. As a result, Waverly fired her for violating its social media policy (which she had drafted). After Waverly replaced her with someone 12 years her junior, Jungclaus sued for sex discrimination, age discrimination, retaliation, and hostile work environment.

Offensive social media posts doom airline employee’s discrimination claim

"If I were Black in America, I think I'd get down on my knees every day and thank my lucky stars that my ancestors were brought over here as slaves."

"Have you lost your cotton pickin' mind?"

"Too many [blue-eyed people] are reproducing with Brown Eyed People."

Those are three examples of Colleen Koslosky's (a former American Airlines customer service agent) Facebook posts that went viral and caused her employer to fire her.

She claimed the airline fired her because of her disability — nerve damage and edema in her leg — based on its prior denial of a reasonable accommodation. The employer, on the other hand, argued that it properly fired her after Koslosky's posts went viral, customers complained, and employees refused to work with someone they believed was "racist." 

The 3rd Circuit Court of Appeals had little difficultly affirming the dismissal of Koslosky's lawsuit.

She … claims that a male American customer service employee who was not disciplined for his social media posts disparaging Trump voters — calling them "ignorant rednecks" and "uneducated racist white people." Koslosky does not argue American management knew about her colleague's inflammatory social media posts. This is dispositive. …

As Koslosky points to no evidence of pretext, we are thus left with one conclusion: American fired her because her racially insensitive social media posts violated its policies and generated an outcry from employees and customers alike. Because this is a legitimate justification for her ouster, we are not persuaded that the company violated any law here.

This employee had no business keeping her job or winning a discrimination lawsuit. Employees are absolutely responsible for what the post on their personal social media, and need to understand that their employer can, should, and will hold them accountable when warranted. In this case, it was warranted. 

Biden’s Department of Labor proposes significant new independent contractor regulations

Who qualifies as an independent contractor? If the Biden administration's new proposed regulations take effect as drafted, the answer to that question will change significantly. 

Under the proposed new rules, the DOL will use a multi-factor "economic realities test" that considers and balances the following non-exclusive list of six factors to determine whether the worker is truly in business for themselves, or is an employee working for someone else.

Coronavirus Update 12-21-2021: Employers are starting to get real about vaccinated workforces

Last week marked the one-year anniversary of the Covid-19 vaccine being administered in the United States. Yet, here are some headlines from last week:

• U.S. employers lean toward required COVID-19 vaccinations
• Google is threatening to fire unvaccinated employees
• Kroger to end some Covid-19 benefits for unvaccinated workers
• From mandates to masks, how some big companies are adjusting to Omicron

While we wait for the Biden administration's vaccine mandates to work their way through the courts (this past weekend's 6th Circuit pronouncement notwithstanding), employers are taking matters into their own hands. Fueled by the exponential surge in Delta-related Covid cases, and the real and palpable threat of a more contagious Omicron variant looming and starting to wreak havoc, many employers have simply run out of patience with unvaccinated employees.

Coronavirus Update 12-16-2021: Who peed in the 6th Circuit’s cornflakes?

Yesterday, the 6th Circuit issued its first substantive opinion in the consolidated case that will determine the legality of OSHA vax-or-test emergency temporary standard. The opinion didn't determine any matters related to the substance of the mandate itself; it only addressed the procedural issue of whether the case would initially be heard by a three-judge panel of the 6th Circuit or an en banc panel comprised of the entire court. The answer — a three-judge panel initially will hear the case. 

DOL reopens the floodgate to liquidated damages in wage and hour investigations

The Department of Labor's breakup with liquidated damages in wage and hour investigations lasted only four years. Late last week, the agency announced that it would again seek liquidated damages (an amount equal to the unpaid wages themselves) in investigations, undoing a  policy change made by the Trump administration.

According to the DOL, it will "return to pursuing liquidated damages from employers … in its pre-litigation investigations provided that the Regional Solicitor of Labor or their designee concurs with the liquidated damages request.… Liquidated damages shall not be assessed by WHD where the employer has set forth credible evidence of a good faith defense or the where the RSOL deems the matter inappropriate for litigation."

Have you felt the pain of a wage/hour investigation or lawsuit?

For the past three years, the Department of Labor has been trying to get employees PAID for their unpaid overtime and minimum wages. That's PAID, as in the Payroll Audit Independent Determination program, a creation of the Trump administration that allowed employers to self-report FLSA violations to the Department of Labor without risk of litigation, enforcement proceedings, or liquidated damages.

As of last week, however, the PAID program is history, as the DOL announced its immediate end.

No, you don’t get to keep your paid leave after your position is eliminated

The headline reads, "Trump aides made a late request to Team Biden to extend their parental leave. They said no." Here's the story:

[A] number of ex-Trump political officials … lost their parental leave when Joe Biden was sworn into office. It's a byproduct of the field they're in: Their boss (the president) may have been the one let go, but his departure has meant that they, too, lose their jobs and benefits. Still, they argue that the Biden administration should have honored their leave by keeping them on payroll until the end of it — a request that … the Biden transition did not grant.

One such employee, Vanessa Ambrosini, welcomed a new baby the week before Christmas, and was looking forward to parental leave through mid to late March. "I got completely screwed," she says.

No, Vanessa, you didn't. What you got was unemployed, a fact of which you should have been well aware since at least November 7. In fact, you should have been aware of it for more than a month before you started your maternity leave. It seems to me these employees are trying to take advantage of the consequences of which they were well aware in an attempt to make the new administration look bad. I don't buy it.

I applaud any company that takes a stand in support of democracy

Meet Bob Unanue, the (for now) CEO of Goya Foods. Here he is talking to Maria Bartiromo on Fox Business.

Goya Foods CEO Bob Unanue tells Maria Bartiromo how coronavirus was used for “ushering in the dawn of a new world order, this Great Reset, with an unverified election,” falsely claims 80 million people voted for Trump. “There is a war coming.”

Maybe rename the company “MyBeans”? pic.twitter.com/Kw8WXoTBLg

— Eric Kleefeld (@EricKleefeld) January 20, 2021

Coronavirus Update 12-22-2020: Congress approves an FFCRA extension (sort of)

Late yesterday, Congress approved the Consolidated Appropriations Act, 2021, better known as its $900 billion COVID-19 rescue stimulus. President Trump is expected to sign it into law.

Buried within the bill's 5593 pages (on pages 2033 - 2037) is an extension of tax credits for paid sick and family leave under the Families First Coronavirus Response Act, which otherwise would have expired on December 31.

If you care about the future of democracy, then we have to count every single vote

As I type at 6:30 am on the morning after, we still don't know who won the presidency. There are 9 states and 87 electoral votes undecided, and few of those states (Arizona, Wisconsin, Michigan, Georgia, and Pennsylvania) will ultimately determine the winner.

Yet, in the wee hours of the morning, Donald Trump took to a White House podium and stated his clear and unambiguous intent to go to the Supreme Court to stop the counting of outstanding votes, which he says is "a fraud on the American public." 

Coronavirus Update 10-28-2020: The 10th nominee for the “worst employer of 2020” is … the whistleblower whacker

SHRM, the Society for Human Resource Management, describes itself as "the foremost expert, convener, and thought leader on issues impacting today's evolving workplaces." Physician, heal thyself!

According to a recent lawsuit filed against SHRM (as reported by The New Yorker), SHRM may have a huge whistleblower retaliation problem on its hands.

Results—Would you boycott a business based on the candidate it supports? #vote

The results are. Thank you to the 244 of you took the time to answer my question: Would you boycott a business based on the candidate whom it (or, more accurately, its ownership) supports for President in this election?

The results:

Yes = 58.6%
No = 41.4%

PLEASE don’t tell your employees which candidate to vote for

This post at the Evil HR Lady Facebook group caught my attention yesterday:

Florida company's president warns employees their jobs could be in danger if Trump loses election

Why I call myself the 'Master of Workplace Schadenfreude'

If you and I are connected on LinkedIn (and if we're not, please correct that mistake immediately), you may have noticed that my headline describes me as a the "Master of Workplace Schadenfreude." 

I'm often asked, "Jon, what the heck does that mean?" Today, I have the answer.

Coronavirus Update 10-7-2020: Could White House employees file an OSHA complaint?

Monday night saw President Donald Trump dramatically return to the White House after his three-day stay at Walter Reed Medical Center for COVID-19. We saw Marine One land on the White House lawn, President Trump emerge and walk up the stairs to the White House, remove his mask for a photo op, enter his home with his mask still in his pocket, reemerge for a reshoot, and again enter the White House maskless.

It's that last part I want to talk about. HuffPost asks if White House employees could lodge an OSHA complaint about the President's COVID recklessness? I'd answer that question with a solid and resolute "thumb's up." The bigger question, however, is whether OSHA would do anything about it.