I'm not proud of this but i just made a scene in public for the first time in my life… I walked into a Starbucks and they asked me to put a mask on! I yelled this is ridiculous, so I turned around and walked out. I know what you're thinking… My first mistake was walking into a Starbucks:)
I came across the post written by the former Hercules actor a couple of nights ago while perusing my LinkedIn feed. Three things came to mind.
If you have an employee experiencing one or more of these long-haul symptoms, what are your legal obligations to that employee under ADA and FMLA?
Children nationwide are getting ready to go back to the school for the 2021 – 22 school year, the third school year students and their parents will be living and dealing with, Covid-19.
Here's what we know about what this school year will look like.
Late last week, a federal jury tagged Walmart with a verdict totaling more than $125 million in a disability discrimination lawsuit the EEOC brought on behalf of an employee with Down syndrome.
I pay a teriyaki chef $120 per day. He worked ten hours—ten hours a day. So here’s how to calculate it. He works ten hours a day at $120 a day. I divide it by hours, and it’s $10.97 per hour. If he works overtime, it will be $16.20 overtime pay. So $120 a day, I have it covered because it was way past—way beyond $7.25 minimum wage rate. So I take consideration of the industry standard, you know. So either it is for teriyaki chef, it is $120 or $120 per day.In other words, as the court correctly surmised in Walsh v. Fusion Japanese Steakhouse, the employer "works backward to calculate the hourly rate of the employees based on the day rate." That backward calculation, however, to jerry-rig an hourly rate plus and overtime rate to arrive at the agreed-upon day rate, is not legal.
On Friday, President Biden signed an Executive Order on Promoting Competition in the American Economy. According to the Order, its goal is to promote a "fair, open, and competitive marketplace" and "the welfare of workers, farmers, small businesses, startups, and consumers" through the elimination or limitation of "excessive market concentration," which "threatens basic economic liberties, democratic accountability." One of the President's targets is "companies [that] require workers to sign non-compete agreements that restrict their ability to change jobs." Indeed, according to the President, half of private-sector businesses require at least some employees to enter non-compete agreements, affecting some 36 to 60 million workers.
Thus, President Biden ordered "the Chair of the FTC … to consider working with the rest of the Commission to exercise the FTC's statutory rulemaking authority … to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility."
I've shared this story before, but it's worth re-sharing because (a) it's been a few years and I have many new readers, (b) it's really good, and (c) because it's super relevant to today's lesson.
I spent a high-school summer working on a warehouse loading dock. One of my co-workers was named Harland Jester. (I provide his name because he named his son "Court," and this context provides the necessary color for the rest of the story.)
Yesterday, I was highly critical of the ABA Journal for publishing a column that victim-blamed working moms for their lack of advancement in the legal profession. Then, ABA President Patricia Lee Refo did what she could to fix the injustice created by the journal of the organization she runs.
In her own column—Women's success in legal careers: Lack of advancement is not a 'woman' problem, it’s a 'profession' problem—Refo took apart the notion that female attorneys are to blame for their lack of upward mobility. They have not failed, Refo correct argues, their employers have failed them.
Last week I asked you, my readers, for your creative ideas to incentivize more people to get vaccinated.
Your thoughts—
Yesterday, the Supreme Court declined to hear the appeal of a school district challenging the right of a transgender student to use the bathroom that corresponded to his gender identity, leaving in place the landmark 4th Circuit opinion holding that transgender bathroom restrictions constitute illegal sex discrimination.
This decision falls in line with the EEOC's recent statement on this issue for employers.
WWJ CBS Detroit fired meteorologist April Moss after objecting on-air against her employer's COVID-19 policies. Moss paused her Father's Day weather forecast to say, "And speaking of a brand new week, I will be sitting down this week with Project Veritas to discuss the discrimination that CBS is enforcing on its employees. Tune in to Project Veritas for my full story." (Project Veritas is a controversial far-right activist group that uses hidden camera footage to attack its targets.)
Governments and employers seemingly have tried everything to get as many people vaccinated as quickly as possible.
Yet, we are failing.
I spent last weekend visiting my parents in Philadelphia. Because of the pandemic we had not seen them in 20(!) months. It was a glorious five-day visit.
During our trip to Philly we mixed in a visit to Donovan's cardiologist (whom he had also not seen in 20 months). We learned two things from that appointment.
First, Donovan's (formerly) narrow pulmonary valve responded amazingly to his October 2019 procedure.
Secondly, Covid is still spreading like wildfire among the unvaccinated, even kids. We learned that pediatric ICUs are full of unvaccinated children with serious and dangerous COVID-19 infections. According to Donovan's cardiologist, "It is now painfully clear that you will either get vaccinated or you will get COVID."
Further proof of our Covid-bifurcated society? Consider the Manatee County, Florida, IT Department, which was just ravaged by a COVID-19 outbreak. According to CNN, of the six people infected, five were hospitalized and two died. They were all unvaccinated. The only exposed employee who did not get infected happened to be the only vaccinated employee.
Ex-employee in deep doo-doo after prank: A cashier reported an employee who had given his two weeks’ notice was seen running from the restaurant restroom to his car and driving away. A check of the restroom revealed the suspect had scattered dog feces on the floor. He was arrested and charged with criminal mischief.Based on my experience, this story is quite tame. Just the floor? What about the walls? And only dog feces? Or was it really just dog feces?
Twelve days ago I predicted that the 117 hospital workers suing their employer over its mandatory COVID-19 vaccine would lose their lawsuit in spectacular fashion.
I love it when I'm very, very correct.
Over the weekend, Judge Lynn Hughes of the United States District Court for the Southern District of Texas issued a pointed five-page opinion that eviscerated the plaintiffs' arguments and dismissed their lawsuit. The losers vow to appeal and fight on. To quote one of my law school professors, I say, "Too bad, so sad, hard cheese."
Here's what I predicted about this case and the plaintiffs' arguments, and here's what Judge Hughes had to say.
For all other employers, OSHA updated its voluntary guidelines to focus primarily on protections for unvaccinated and otherwise at-risk workers. These updates largely track the CDC's updated guidelines for the fully vaccinated.
Testimony going off the rails now.
— Tyler Buchanan (@Tylerjoelb) June 8, 2021
Tenpenny is claiming there is metal in the vaccine that causes forks to stick to your forehead. She saw videos of it on the internet, you see
Also promoting the 5G cell phone network vaccine theory. This is the anti-vaccine "expert witness" pic.twitter.com/sPpuAqmHba
In Miller v. Bonata, a federal district court held that California's 30-plus-year ban on assault weapons violates the Second Amendment. In support of his holding, Judge Roger Benitez made the following analogy, in arguing in support of the lack of harm assault weapons pose: "More people have died from the Covid-19 vaccine than mass shootings in California."
Judge Benitez is wrong, and it's not even a close case.
In light of the recent crippling Russian cyber-attacks on Colonial Pipeline and JBS, now is a perfect time for a refresher course on cybersecurity.
Here are some A+ resources I've previously provided:
Employers have been anxiously waiting for the EEOC to publish its guidance for employers on incentives offered to employees in exchange for receiving the COVID-19 vaccine. Late last week, the EEOC finally released that guidance. The issue is whether the incentive renders the vaccine coerced and therefore non-voluntary, which would be unlawful under the ADA and GINA.
What did the EEOC say:
Today, my rock-star daughter turns 15.
There's lots I can say about Norah, but I've shared so much over the years that I feel like it'd just be repetitive. So instead of writing about what a sweet, smart, compassionate, talented human she is and has always been, today I'm turning this space over to her.
Norah's "final exam" for her 9th grade English class was a creative writing assignment. They were given very little direction. Just, "You have a week; write something creative." With her permission, today I'm publishing what she wrote. I found it so moving and so outstanding that I think it needs to be shared with as wide of an audience as possible. Enjoy.
And please take a moment to wish Norah a happy birthday. You'll find her on Twitter @normlmao_ or @norahmariemusic.
If an employer is supposed to keep an employee's vaccination status as a confidential medical record, how is an employer supposed to enforce the CDC's most recent guidance that permits fully vaccinated individuals to unmask?
Yesterday's post about COVID-19 vaccine-card fraud got me thinking about what we need to do to combat it (other than trying to spot fakes when we can and diligently enforcing the criminal laws that already prohibit this fraud). My answer:
A national digital vaccine passport.
But it's complicated.
Fraudulent COVID-19 vaccine cards are readily available online, and their prevalence will only grow with the CDC's loosening of its mitigation guidelines for the fully vaccinated.
The problem has gotten so bad that the FBI is now warning people that making or buying a fake COVID-19 vaccination record card is a federal crime.
One open issue stemming from the CDC's about-face on masking for the fully vaccinated is how OSHA would address these new guidelines. When OSHA published its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace in late January, it made it clear that one's vaccination status had zero impact on an employer's obligation to require masks in all cases.
Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.
In the world of Covid, three and half months is an eternity, so here we are just three and a half months later living in a country without facial coverings for the fully vaccinated. So what says OSHA?
Today, a break from talking about the CDC and masks (but more tomorrow) to bring you a truly awful nominee for the Worst Employer of 2021.
For the past two years, a human trafficker or enslaver hoisted the "Worst Employer" trophy at year's end. Will 2021 bring us a threepeat?
NBC News reports on a strong contender:
The FBI was at a massive Hindu temple in New Jersey on Tuesday that has been accused in a lawsuit of luring Indian men from marginalized communities to the U.S. and forcing them to work nearly 90 hours a week for around $1 an hour.
Friendly reminder that under HIPPA, your vaccination status is private.
Or this tweet:
The rule is simple, HIPAA protects EVERY American from disclosing ANY of their health records to ANYONE.Their point? That medical privacy laws protect their vaccination status, and it's illegal for any business to ask as a condition of anything.
Yesterday, the CDC updated its Covid guidance to remove all masking and social distancing guidance for those of us who are fully vaccinated. According to the CDC—
But what does this really mean? And, more to the point, how you know who's vaccinated and who's not so that you can permit them to remove their masks inside your business?
But what does it really mean? And, more to the point, how do you know who's vaccinated and who's not so as to allow anyone to be unmasked?
Last evening, Governor DeWine held a statewide address to announce the availability of the Pfizer vaccine for Ohioans ages 12 - 15. That news was not shocking. The rest of what he had to say, however, was.
This weekend, the Ohio Employer Law Blog turns 14!
May 9, 2007 — my first post ever here at the blog. 3,628 posts and three law firms later, happy birthday to me!
May 9 offers another reason to celebrate, Mothers' Day. I haven't seen my mom in 19 months, but with vaccines hopefully on the immediate horizon for my kids, I should be able to give my mom a sorely missed and needed hug really soon. This long-distance message will have to do until then.
Today also happens to be my mom's birthday, so everyone please wish her a happy one!
Next week, more legal stuff, starting with some good, and not-so-good, news from the EEOC.
* Photo by Marty Southwell on Unsplash
The Telegraph recently tweeted about what is being called "Covid anxiety syndrome." The whole thread is a fascinating read, but its bottom line is that some people are reacting irrationally by continuing extreme Covid mitigation measures when they are no longer needed.
The Guardian quotes professor Marcantonio Spada London South Bank University, who first theorized this syndrome after noticing people were developing a particular set of traits in response to Covid.Fear is normal. You and I are supposed to fear the virus because it's dangerous. The difference, however, in terms of developing a psychopathological response is whether you end up behaving in … overly safe ways that lock you into the fear. My expectation is we're going to have … chunks of the population that are avoiding re-engagement and constantly worrying about the virus for months to come, whether they are vaccinated or not.
So here's my question for you — do you have employees experiencing such behavior? Continuing to insist on remote work even after being fully vaccinated? Wearing a mask all of the time, even when alone in an office? Insisting on constantly wiping down surfaces as if they are disinfecting a crime scene?
The National Federation of Independent Business just released the results of its most recent Covid-19 Small Business Survey. 546 businesses, all with fewer than 200 employees, provided their experiences on a variety of Covid related topics. The results that jumped off the page, however, were the two questions about the Covid vaccine.
Bobby Edwards, the manager of J&J Cafeteria in Conway, South Carolina, effectively enslaved JCS (to whom we refer with the fictitious name "Jack"), forcing him to work at the restaurant over 100 hours per week without pay. …In 1990, when Jack was 12 years old, he started working part-time at J&J Cafeteria as a dishwasher. He has an intellectual disability and an IQ of 70. After a few years of part-time work, Jack dropped out of high school and started working full-time at the restaurant. For the first 19 years of his employment, when the restaurant was owned and managed by different members of the Edwards family, Jack was always paid for his labor.
That, however, changed in September 2009, after Bobby Edwards took over the management of the restaurant. Edwards moved Jack into an apartment attached to the restaurant and forced him to work more than 100 hours per week without pay — usually 6:00 a.m. to 11:00 p.m. for 6 days and 6:00 a.m. to 2:00 p.m. on Sundays. Not only did Jack work long hours without pay, he was never given a day off. Edwards effected this forced labor by taking advantage of Jack's intellectual disability and keeping Jack isolated from his family, threatening to have him arrested, and verbally abusing him. His control over Jack also involved physical abuse. Once, when Jack failed to deliver fried chicken to the buffet as quickly as Edwards had demanded, Edwards dipped metal tongs into hot grease and pressed them to Jack's neck, resulting in a burn that fellow employees had to immediately treat. Other times, when Jack made supposed mistakes, Edwards whipped him with his belt, beat him with kitchen pans, and punched him with his fists. This treatment left Jack physically and psychologically scarred. Jack later said, "I felt like I was in prison. Most of the time I felt unsafe, like Bobby could kill me if he wanted. … I wanted to get out of that place so bad but couldn't think about how I could without being hurt."
At the time of sentencing, the judge ordered Edwards to pay Jack $272,952.96 in restitution, in addition to sentencing him to 10 years in prison.
Last month, the court of appeals ruled that Edwards should pay liquidated damages to Jack under the FLSA in addition to the $272,952.96 of back wages. Under the FLSA, an aggrieved employee is entitled to an award of liquidated damages in an amount equal to the total amount of unpaid wages (i.e., double damages) unless the employer can show (1) that it acted in good faith; and (2) that it had reasonable grounds to believe it had complied with the FLSA. I see no way possible that Edwards could have ever hoped to have met that standard.
Thus, at the end of the day, Jack should receive a total award of $545,905.92 in restitution. Of course, how Edwards intends to make good on his substantial obligation to Jack is another story.
Finally, my offer to Bobby Paul Edwards still stands. If the Federal Correctional Complex in Butner, North Carolina, will not allow him to collect his trophy, I’ll have it waiting for him to claim when he's released in 2029.
In a stunning show of ignorance, a Miami, Florida, private school has informed its staff that because the Covid-19 vaccine poses a health risk to those in close proximity to those who have been vaccinated, those who have already received the vaccine must physically distance from students and anyone vaccinated will not be permitted to return to work after the summer break.
