Friday, August 9, 2019

WIRTW #563 (the “work in progress” edition)


Work in Progress is band fronted by Gaten Matarazzo, who is better known for his role as Dustin on Stranger Things. Next week, his band is coming through Cleveland on their summer tour, and, amazingly, my daughter’s band gets to open for them at this sold out show. I’m beyond excited for the opportunity this presents for her and her bandmates. Stay tuned for pictures, stories, etc.


Here’s what I read this week:

Thursday, August 8, 2019

Who owns intellectual property created for a company?


Growing up in Philadelphia, there are few things more beloved than the Phillie Phanatic. Which is why I’m so intrigued by the lawsuit the Phillies recently filed against the people who claim to own the rights to the mascot the team contracted them to create in 1978.

Which got me thinking … what rights does a company have to intellectual property created by an employee or an independent contractor?

Wednesday, August 7, 2019

EEOC settlement teaches lesson on extended leaves of absence as ADA accommodation


An employee tells you that he was recently diagnosed with prostate cancer and needs a few weeks off for treatment, surgery, and recovery. Assume either you’re not an FMLA-covered employer or that the employee is not FMLA eligible.

Do you?

Tuesday, August 6, 2019

It is an inexcusable sin for an employer NOT to have an anti-discrimination policy


There are some employment policies that you can get away with not having. An anti-discrimination policy is not one of them.

In Hubbell v. FedEx SmartPost (decided yesterday by the 6th Circuit), FedEx learned this lesson the hard way.

Monday, August 5, 2019

Help me understand guns


This weekend was one of the deadliest on record ever for gun violence. Dozens were killed and more injured in separate shootings in El Paso, Texas, and Dayton, Ohio.

So, today, I take a diversion from employment law to ask a simple question.

Can someone help me understand guns?

Friday, August 2, 2019

WIRTW #562 (the “someday we’ll find it” edition)


When the whole world seems like it’s going to 💩 , sometimes all you need to brighten your spirits is a video of 🐸 singing about a 🌈.

So here’s Kermit the Frog (along with My Morning Jacket’s Jim James, and Janet Weiss, Sleater-Kinney’s ex-drummer) performing the Muppets’ classic, Rainbow Connection, from his surprise performance at last weekend’s Newport Folk Festival.


(I really want to find the two people who thumbs-downed this video on YouTube.)

Here’s what I read this week.

Thursday, August 1, 2019

When an employee’s religion clashes with an employer’s dress code


A Muslim woman is suing the hospital at which she works as medical assistant, claiming she was told she needed a “note from the Quran” when she asked for an exception to the hospital’s dress code to wear a face covering during Ramadan.

The case, Boyd v. Cooper University Hospital, is pending in federal court in New Jersey. While it’s just filed, and years from resolution, we can use it to learn how an employer should react when a employee dons religious garb in the workplace.

Wednesday, July 31, 2019

Do workplace bullies violate OSHA?


According to a study recently published in the Journal of Applied Psychology, bullying bosses make workplaces less safe.
Poor treatment from a boss can make employees feel that they’re not valued by a group. As a result, they can become more self-centered, leading them to occasionally forget to comply with safety rules or overlook opportunities to promote a safer work environment.

The headline made me think that if bullying contributes to an unsafe workplace, can it also violate OSHA? The answer is quite possibly yes.

Tuesday, July 30, 2019

Labor and employment lessons from the world’s most combative stripper


Different type of stripper
Meet Brandi Campbell, a stripper and self-proclaimed labor activist for other strippers nationwide. She maintains stripperlaborrights.com, where she provides dancers with information about their legal rights, including their rights under the National Labor Relations Act. She’s filed (and won) unfair labor practice charges against clubs in Nevada, Minnesota, and Wisconsin, alleging that they discriminated/retaliated against her for engaging in statutorily protected activities and deprived dancers of their statutory rights by misclassifying them as independent contractors.

Monday, July 29, 2019

#MeToo hasn’t killed the office romance, just the inappropriate ones


According to the National Review, #MeToo killed the office romance.
It must be a brave soul who dares to strike up a flirtatious conversation at the workplace microwave these days. Only ten percent of Americans report having met their mate at the office, a level that is half what it was in the 1990s.

Friday, July 26, 2019

WIRTW #561 (the “don’t call me flaky” edition)


According to The Economist, dads face greater workplace penalties for taking parental leaves than do moms.
Americans see taking a break to care for children as a sign of lower commitment to work and even flakiness. … Whereas mothers who take time off to rear offspring face difficulties when returning to work, opt-out fathers may fare worse, says Scott Behson, author of a book called “The Working Dad’s Survival Guide: How to Succeed at Work and at Home”. America has a workaholic culture, he says. Mothers who put their families first eschew that culture, resulting in costs to their careers. But fathers who do so are violating both the workaholic culture and traditional gender norms.

Here’s the thing. Just because I enjoy being a dad does not make me flaky. It just means that I enjoy being a dad. We all make choices in our lives. I’ve chosen to eat dinner with my kids, attend their school conferences and events, haul gear to their concerts, and work the merch table for Norah’s band. Don’t get me wrong, I love being a lawyer. But, when I die, I’d much prefer my tombstone reads, “He was a great dad,” not, “He was a great lawyer.”

I’m a dad active in my kids’ lives. Yet, it doesn’t mean I’m any less dedicated to my job. It’s not an either/or proposition. You can be a good parent and a good employee. They are not mutually exclusive. So please don’t judge the quality of my work based on my commitment to my family. And please don’t call me flaky.


Here’s what I read this week:

Thursday, July 25, 2019

Which mental health service does the FMLA not cover?


Yesterday, I discussed our national mental health crisis, and the important role employers play in removing barriers to employees receiving the help they need. Then, I came across this post on LinkedIn, discussing a massive barrier that the FMLA institutionally imposes.

An individual suffering with a mental health issue has various treatment and therapy options available to them. For medication, one can see a psychiatrist, a primary care physician, or a nurse practitioner. For assessment and therapy, one can see a psychologist, a clinical social worker, or a licensed professional counselor.

Amazingly, however, the FMLA does not recognize one of these licensed mental health professionals as a “health care provider.”

Wednesday, July 24, 2019

Employee suicide is the next big workplace safety crisis


A recent headline at businessinsurance.com caught my eye:


It’s a pretty dramatic headline, but when you drill down into the statistics, it has a lot of weight.

  • Suicide is the 10th leading cause of death in the U.S.
  • Between the ages of 10 and 34, however, suicide is the second leading cause of death, and the fourth leading cause of death between the ages of 35 and 54.
  • In 2017, 47,173 Americans died from suicide (more than double the number of homicide victims), and another 1.4 million attempted suicide.
  • Between 2000 and 2016, the U.S. suicide rate among adults ages 16 to 64 rose 34 percent, from 12.9 deaths for every 100,000 people to 17.3 per 100,000.
  • In 2016, the U.S. Bureau of Labor Statistics hit a record in its 25-year tally of workplace suicides at 291, with the number gradually climbing over the prior decade.
  • The highest suicide rate among men was for workers in construction and mining jobs, with 53.2 deaths per 100,000 in 2015, up from 43.6 in 2012.
  • The highest suicide rate among women was for workers in arts, design, entertainment, sports and media, with 15.6 deaths per 100,000 in 2015, up from 11.7 in 2012.

The numbers are stark and scary, and show a nation in the midst of a mental health crisis. What can employers do to recognize and mitigate this risk, and provide a safe workplace for employees in crisis?

Tuesday, July 23, 2019

The 14th nominee for the “worst employer of 2019” is … the horrible harasser


In its press release announcing a recently filed sexual harassment lawsuit, the EEOC says that a N.Y.-based housing development and property management company violated Title VII when its owner and top executive, repeatedly subjected female employees to crude sexual comments, called them sexually obscene names, and showed them pornography.

And, as bad as that sounds, that description barely scratches the surface of what is actually alleged to have happened in this workplace.

Monday, July 22, 2019

Parental discrimination claims pose big risks for employers


According to workingmother.com, More Parents Than Ever Are Suing Their Employers for Discrimination—and Winning. The article is right — parental discrimination claims (which are really just sex discrimination claims brought by working parents) are very dangerous for employers.

Friday, July 19, 2019

WIRTW #560 (the “more kindness” edition) #IChooseKindness


Yesterday, I asked you all to join me in choosing kindness, and talked about Richard Cook’s Don’t Hurt Anyone Project. Over on LinkedIn, Richard took the time to share his thoughts on my post, which I’m sharing with y’all here.

Hi Jon, I am all in for #IChooseKindness Go! It is wonderful to see so many supportive comments. As you mentioned, I started the #donthurtanyoneproject There are a confluence of factors that led me to create something that felt so quaint and yet so urgent. One was sitting in the crowded gate area of airports waiting for a delayed flight. In my former career I did a lot of that. Inevitably I had the opportunity to talk with quite a few individuals. Sometimes we shared many of the same perspectives. Others not so much. But never in the latter of those two categories did a person get up and move to the furthest seat from me or I the same. We didn’t shout over each other. We just talked. When boarding time came we exchanged courtesies, sometimes shook hands and a few times figured out if we could be seated together to keep talking. It was hard for me to reconcile the “Divided States of America” narrative. No doubt that Americans disagree. However, I would suggest that for every ugly incident or rant that makes the news, there are far more that stop to help a motorist with a flat, make room in their family for a foster child or volunteer to help those struggling. Those people don’t ask for recognition but we need their energy. Urgently.

Let me know that you are choosing kindness by dropping a comment below, or by sharing your thoughts on any of your social channels with the hashtag #IChooseKindness.

Here’s what I read this week:

Thursday, July 18, 2019

I choose kindness


In a world that has decided
That it’s going to lose its mind
Be more kind, my friends, try to be more kind
                              Frank Turner, Be More Kind                                                           
I’d like to introduce everyone to the Don’t Hurt Anyone Project. Richard Cook created the nonprofit in response to “the toxic currents of racism, misogyny, xenophobia, homophobia, anti-Semitism, discrimination, harassment, inequity, and injustice … growing even stronger, wider, and deeper in today’s America and across the globe,” and “to be a voice for nonviolence, equity, justice, and civility.”

I’m a huge fan of Richard, his project, and their message.

Wednesday, July 17, 2019

There isn’t a “magic number” of racial or ethnic insults an employee must prove to establish a hostile work environment


Jamie Ortiz (of Puerto Rican descent) worked for the Broward County, Florida, School Board in various capacities for nearly 20 years, including, from 2009 through 2017, as an auto mechanic in the district’s garage under the supervision of Michael Kriegel.

According to the testimony of both Ortiz and many of his co-workers, Kriegel had some issues with Puerto Ricans and other Hispanics, which he expressed to anyone who would listen, including Ortiz, on a daily basis.

Tuesday, July 16, 2019

A handy FAQ for service animals in the workplace


A local Subway recently earned itself some bad publicity when an employee denied access to a customer with a service dog.


While this story involved a customer, and not an employee, it did get me thinking about employee service dogs at work.

I created this handy FAQ on service dogs at work for your reference.

Monday, July 15, 2019

The 13th nominee for the “worst employer of 2019” is … the excoriating executives


It’s been nearly a month since I posted the last nominee for 2019’s Worst Employer. It’s not for lack of ideas; it’s just that the prior nominees have been so awful that the bar for qualification has been set pretty high. Thankfully, France Télécom has come to the rescue.

What did the former top executives at France’s national phone company do to earn their nomination?


Friday, July 12, 2019

WIRTW #559 (the “Happy Birthday D-Man” edition)


This guy turns 11 on Sunday.


Happy birthday Donovan! Please keep making us smile.

Here’s what I read the past two weeks.

Discrimination

HR & Employee Relations

Technology

Wage & Hour

Labor

OSHA & Safety

Thursday, July 11, 2019

Rob Mendez won the Jimmy V Award at last night’s ESPYS, and it might be the most inspiring thing you’ve ever seen


Rob Mendez coaches the JV football team at Prospect High School in Saratoga, California. He’s also lived his entire life with no arms and no legs. He was born with tetra-amelia syndrome, an extremely rare genetic disorder that prevented their embryonic formation. You can read Rob’s entire (and entirely) compelling story at this ESPN feature story, or watch it in this Jon Hamm-narrated featurette.

Last night, at ESPN’s annual sports awards, the network honored Rob Mendez with its Jimmy V Award for Perseverance.

As compelling and inspiring as he and his story are, so was his acceptance speech last night.


Wednesday, July 10, 2019

Why are employers testing job applicants for prescription medications?


During a pre-employment medical examination and drug screen, an applicant tests positive for Alprazolam, the generic form of Xanax (a medication commonly prescribed for anxiety), a fact she had already disclosed during the examination. The doctor performing the medical exam and reviewing the drug screen concludes that the applicant is medically acceptable for work as an intake specialist at an inpatient mental health facility. The employer, however, has other ideas. It withdraws the job offer without providing the applicant any opportunity to discuss the results.

The applicant sues, claiming disability discrimination.

Who wins?

Tuesday, July 9, 2019

NLRB offers significant and important guidance on its new(ish) employee handbook rules


It’s been just over 18 months since the NLRB decided Boeing Co., perhaps its most significant decision in decades. It rewrote more than a decade of precedent by overturning its Lutheran Heritage standard regarding when facially neutral employment policies violate the rights of employees to engage in concerted activity protected by section 7 of the National Labor Relations Act.

In Boeing, the Board scrapped Lutheran Heritage’s “reasonably construe” test (a work rule violates section 7 if an employee could “reasonably construe” an infringement of their section 7 rights) with a test that balances “asserted business justifications and the invasion of employee rights” by weighing “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the requirement(s).” It was a huge win for employers drafting and issuing workplace policies.

Monday, July 8, 2019

Why, yesterday, in France was a stadium full of people chanting “EQUAL PAY?”


Indisputable fact no. 1: Women and men should earn the same pay for the same work.

Indisputable fact no. 2: The players on the United States women’s national soccer team earn substantially less than their counterparts on the men’s team.

The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Substantial equality is measured by job content, not job titles.

Wednesday, July 3, 2019

4 ways your employees are like a new puppy


We are on day 5 of new puppy in the Hyman household. Dante is adjusting well, as are we (including big sister Loula … more or less). It’s been 7 years since we last raised a puppy. And the thing I forgot the most is just how many rules there are.

Tuesday, July 2, 2019

There’s no such thing as “reverse” discrimination—it’s all just discrimination


According to the New York Post, a Caucasian 20-year veteran attorney for the Legal Aid Society is suing her former employer for race discrimination. Among other issues in her lawsuit, she claims that she was denied a lateral move “because of ‘diversity considerations.’”

Do you know that some courts impose a different, higher legal standard for discrimination against white employees than for discrimination against African-American employees?

Monday, July 1, 2019

Don’t forget about overtime pay when providing bonuses to non-exempt employees


Last week Chipotle announced a new bonus plan that could earn its employees up to an extra month of pay each year. Per the chain’s press release, the program is offered quarterly and can result in a bonus worth one week’s pay, calculated as an individual’s average weekly pay per quarter. To qualify for the quarterly bonus program, restaurant teams must meet certain sales and cash goals.

This bonus program has the potential to be a great way for the restaurant to break through in a tight labor market to attract talent. It also, however, has the potential to pose an FLSA nightmare. Bonus payments often count as part of a non-exempt employee’s regular rate of pay, thereby increasing the overtime premium owed to that employee.

Thursday, June 27, 2019

Does an employer have a duty to protect the personal information of its employees? (Part 3)


Employees trust their employers with a whole bunch of personal information. Social security numbers, medical documents, insurance records, birth dates, criminal records, credit reports, family information, etc. And it’s not like employees have a choice over whether to disclose and entrust this information to their employer. These documents are all necessary if employees want to get hired, get paid, and obtain health insurance and other benefits. Thus, an employer’s personnel records are a treasure trove of PII (personally identifiable information — any data that could potentially identify a specific individual, which can be used to distinguish one person from another and de-anonymizing otherwise anonymous data).

For this reason, cyber-criminals target myriad businesses in an attempt to steal (and then sell on the dark web) this data.

If a company is hacked, and employees’ PII or other data is stolen, is their employer liable to its employees for any damages caused by the data breach?

Wednesday, June 26, 2019

Facebook video sinks employee’s FMLA claim


Everything was going swimmingly for Thomas Dunger during his approved FMLA leave from his job as a mechanic for Union Pacific Railroad … until he decided to go on a fishing trip during his leave and a co-worker started live streaming their excursion on Facebook. A coworker showed the video to Dunger’s supervisor, who charged him with dishonesty for improper FMLA use. To his benefit (or, cynically, because he knew he had been hooked), at his disciplinary hearing Dunger copped to the fishing trip. His late-to-the-game attempt at honesty, however, did not save his job, and Union Pacific ultimately fired him. 

Tuesday, June 25, 2019

Employers are making new dog ownership a little less ruff by offering “pawternity” leave


In three days, my family grows by one. We’re adding a puppy.


My wife and kids have been clamoring for a new dog for a year. Loula (our current dog) is seven years old, and they don’t want to be in a position of not having a dog in our family. Plus, we don’t want to wait until Loula’s too old to tolerate the energy of a new puppy.

Monday, June 24, 2019

The Customer isn’t always right: The Museum of Sex(ual harassment)


Just because an employee works at The Museum of Sex does not mean that she wants be sexually harassed. Or least that’s what Katherine McMahon alleges in her lawsuit against her former employer.

The New York Post offers the salacious details:

“Patrons and co-workers of the Museum grope its employees, use utterly inappropriate sexual language, and inquire into employees’ private sex lives,” the suit alleges. 

Friday, June 21, 2019

WIRTW #557 (the “infinity and beyond” edition)


Toy Story has played a huge party in my life. Donovan is a Toy Story fanatic. He’s seen every movie hundreds of times. He has what seems like every toy and every stuffy. Until the age of 6, every article of clothing he owned had a Toy Story character on it somewhere. Buzz and Woody (but especially Buzz) got him (and, by extension, us) through some really tough times when Donovan was a toddler. How could we do anything other than see Toy Story 4 on opening night.

My four word, spoiler-free review: Go now! (Bring tissues.)

My slightly longer, still spoiler-free review: Lots and lots of tissues.

My even longer, yet still spoiler-free review: Nostalgia has a very strong pull. It’s apt that much of this movie takes place in an antique shop, a place that’s all about nostalgia. Toy Story is extraordinarily nostalgic for my family, and if this is end of the road for the series, I can’t imagine a better ending.


Here’s what I read this week:

Thursday, June 20, 2019

Is blockchain technology the next frontier in combating sexual harassment?


According to Employee Benefit News, Vault Platform has developed an app that uses blockchain technology to allow employees to document and report workplace sexual harassment on their smartphones.

“Interesting,” you say,” but what’s blockchain technology?”

Wednesday, June 19, 2019

The 12th nominee for the “worst employer of 2019” is … the disguised doctor


Norma Melgoza, a long-time employee of Rush University Medical Center, is suing her employer for sex discrimination and equal-pay violations stemming from a denied application for a promotion.

In support of her claim of glass ceiling gender bias, Melgoza points to certain misconduct of the interviewing physician. I’ll let the district court explain.

Tuesday, June 18, 2019

What’s a hostile work environment? You’ll know it when you see it.


“I know it when I see it.” These are the famous words of Justice Potter Stewart defining legal obscenity in his concurring opinion in Jacobellis v. Ohio (1964).

I feel the same way about a hostile work environment. For a hostile work environment to be actionable, it must (among other factors) be objectivity hostile. What does this mean? It’s hard to define, but I know it when I see it.

Monday, June 17, 2019

How long of a leash must you give an employee before firing?


When a client calls me to ask for advice about firing an employee, the first question I always ask is, “What does the employee’s file look like?” I want to know if there exists a documented history of performance issues to justify the termination, and whether said issues are known and understood by the employee.

I ask these questions for two reasons:

  1. Can the employer objectively prove the misconduct to a judge or jury? Fact-finders want to see documentation, and if it’s lacking, they are more likely to believe that the misconduct was not bad enough to warrant documentation, or worse, that it did not occur. In either case, a judge or jury reaching this conclusion is bad news for an employer defending the termination in a lawsuit.

  2. Surprises cause bad feelings, which lead to lawsuits. If an employee has notice of the reasons causing the discharge, the employee is much less likely to sue. Sandbagged employees become angry ex-employees. You do not want angry ex-employees going to lawyers, especially when you lack the documentation to support the termination.

So what does quality documentation to support a termination look like? Consider Anderson v. Greater Cleveland Regional Transit Authority (N.D. Ohio May 29, 2019).

Monday, June 10, 2019

Do your employees understand that social media is a very public conversation?


“It’s 2019. All of our employees have been on Facebook for years. Many are also on Twitter, and Instagram, and … We don’t need to do any social media training.”

If you’ve had these thoughts or internal conversations, allow me to offer Exhibit 1 as to why you are wrong.

Texas district votes to fire teacher who tried to report
undocumented students to Trump on Twitter

Friday, June 7, 2019

WIRTW #556 (the “comfort zone” edition)


My comfort zone is most definitely not at a biker rally. Yet, that's where I found myself last Saturday afternoon. The things we do for our kids. 🤷‍♂️

Click here for Fake ID’s killer set opener, War Pigs, by Black Sabbath, recorded at the Ohio Bike Week Block Party.

Needless to say, I’m pretty darn proud of my (not so) little girl.


Your next chance to see them live is June 15 at Crocker Park, in Westlake, Ohio. Details here for this free show.

Here’s what I read this week.

Thursday, June 6, 2019

An obituary for employment at-will


Over at her employee-rights blog, Screw You Guys, I’m Going Home, attorney Donna Ballman asks, “Is is time to terminate at-will employment laws?

Well, Donna, there’s no need to terminate these laws; they are already dead.

Wednesday, June 5, 2019

SCOTUS decides whether Title VII’s charge-filing precondition to suit is jurisdictional or non-jurisdictional


If the U.S. Supreme Court decided an employment case, I’m contractually obligated to blog about it. Yet, Ford Bend County, Texas v. Davis, which it decided earlier this week, is of little practical import.

To file a private employment discrimination lawsuit under one of the federal employment discrimination statutes, a plaintiff must first exhaust his or her remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission.

What happens, however, if the employee skips over the EEOC and proceeds straight to court? Does that court even have jurisdiction over the claim, or is the omitted EEOC filing merely an affirmative defense for an employer to raise in seeking dismissal of the lawsuit?

Tuesday, June 4, 2019

Proposed law wants to convert “anti-vaxxer” into a protected class


With a couple of important exceptions, an employer can require that employees be up to date on their vaccinations.

The exceptions?

     1/ An employee with an ADA disability that prevents him or her from receiving a vaccine may be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

     2/ An employee with a sincerely held religious belief, practice, or observance that prevents him or her from receiving a vaccine may also be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

Monday, June 3, 2019

Thorough internal investigation saves employer from discrimination claim


A bank fires two female employees for violating its vault-access policy. They claim sex discrimination, pointing their fingers squarely at three male employees who they say violated the same policy, but only received performance counseling.

Open and shut discrimination case? Not quite.

Friday, May 31, 2019

WIRTW #555 (the “you get a shirt, and you get a shirt…” edition)


I ❤️ that my daughter’s band is now selling its own merch.


Here’s what I read this week.

Thursday, May 30, 2019

The top 10 wage and hour mistakes businesses keep making


No law causes employers more compliance headaches than the Fair Labor Standards Act. On its face it’s simple—pay employees no less than a minimum wage of $7.25 per hour (or more, depending on your state or locality), and non-exempt employees an overtime premium of 1.5 times their regular rate of pay for any hours worked in excess of 40 in any work week.

Simple on its face, yet extraordinarily complicated in application. This law costs employers billions of dollars per year in non-compliance.

Wednesday, May 29, 2019

Does the attorney-client privilege protect harassment investigations conducted by a lawyer?


An employee complaints to HR that her supervisor has been sexually harassing her. The allegations aren’t pretty, and, if the investigation is mishandled (or even if it’s handled perfectly), you are reasonably confident that the employee will sue the company. Thus, you want to ensure that every “i” is dotted and “t” crossed in the investigation. So, you bring in the big guns to handle the investigation—the company’s attorney.

At the conclusion of the investigation, the lawyer recommends that the company suspend, and not fire the harasser. That decision leads to the victim filing suit.

During her lawsuit, the employee requests a copy of the investigatory report. You refuse, claiming it’s protected by the attorney-client privilege.

Tuesday, May 28, 2019

What does a valid jury waiver look like?


Earlier this year, the Senate took up the Forced Arbitration Injustice Repeal Act. It would, among other things, prohibit employers from requiring employees, as a condition of employment, to sign agreements submitting employment and civil rights claims to arbitration in lieu of filing in court. According to Vox.com, this legislation has some initial bipartisan support, and has some legit traction to perhaps become law.

I am on record as not being a fan of arbitration for employment disputes. I do not believe they are any less expensive or time consuming that in-court litigation. In stead, I've previously argued for tools such as contractually shortened statutes of limitations and jury waivers as tools employers can to limit risk instead of arbitration agreements.

Friday, May 24, 2019

WIRTW #554 (the “triumph” edition)


How do we raise our girls to become confident women? It’s a question I think about a lot as a dad to an almost teenage girl.

🙋‍♀️ We encourage them to pursue their passions.
🙋‍♀️ We get them working collaboratively with other girls.
🙋‍♀️ We put them into positions to gain leadership skills.
🙋‍♀️ We praise their successes.

While I love School of Rock for both of my kids, this is why I especially love it for my daughter.

To see an almost 13-year-old (everyone wish Norah a Happy Birth Day for Monday) command a stage with skill and passion, and with the love, respect, and admiration of her peers, older and younger, fills this dad with a ton of pride and joy.

And it tells me that she’ll be just fine as an adult, whether her journey is through music or otherwise.

So enjoy Norah doing her thing last weekend (along with Donovan’s fly dance moves), taking the lead on Triumph by the Screaming Females.




As for Norah’s own band, Fake ID, you have two chances to see them live over the next few weeks.

  • June 1 @ Ohio Bike Week, in Sandusky. They’ll be on the Scott Gast Memorial Stage, at Columbus Ave. and Water St., from 3:30 - 5 pm. 
  • June 15 @ Crocker Park, in Westlake. They’ll be rocking the square in front of Regal Cinemas from 5:30 - 7 pm.

Both shows are open to the public and free. Keep an eye out for the merch table to grab your official Fake ID t-shirt.

Here’s what I read this week:

Thursday, May 23, 2019

Defining (and defending) my role as an attorney: more on the employment of registered sex offenders


On Tuesday, I posted something that I did not imagine would be all that controversial, You just found out you hired a sex offender. Now what? Boy howdy was I wrong.

Over at Workforce.com (which syndicates my blog daily), the post had received (so far) 117 (mostly) alarmingly negative comments.

Wednesday, May 22, 2019

In harassment cases, the context of profanities matters (but only sometimes)


Why is everyone suddenly using the C-word,” asks Stan Carey in The Guardian? He blames Game of Thrones (video very NSFW—you’ve been warned).

Assuming Stan’s correct, and more people are becoming more comfortable openly using this generally considered highly offensive and taboo word, how should you react if your employees start using it among each other? Swiftly and decisively, that’s how.

Tuesday, May 21, 2019

You just found out you hired a sex offender. Now what?


A reader sent me the following question.

I worked for a grocery store. Can a child molester be employed by the grocery store? I reported it to the manager, and showed proof and nothing was done about it.

There’s a lot going on here. What does the law require an employer to do (if anything) under these circumstances? And what should an employer do when it discovers it is employing a sex offender?

Monday, May 20, 2019

The 11th nominee for the “worst employer of 2019” is … the 💩y supervisor


From the legaladvice subreddit:

So background, I have IBS and sometimes have to go the bathroom multiple times per work day. My supervisor doesn’t believe I am legitimately using the bathroom, so he said today at the end of the day today if I don’t send him a picture or otherwise prove that I used the bathroom, I will lose 15 minutes of paid time. What sort of recourse do I have?

Friday, May 17, 2019

WIRTW #553 (the “669” edition)


Jack Ma, the founder of Alibaba (China’s answer to Amazon), claims that he has cracked the formula to a happy and productive workforce.

His answer? 669.

What does that mean? According to The Telegraph

“We want 669 in life. What is 669? Six times in six days; the emphasis is on nine,” he said at a company gathering, referring to sex, and using a play on words, as the word “nine” in Mandarin is a homophone for the word “long.”

He wants his employees to have long sex six times every six days. 

And you thought American employers had issues?

Here’s what else I read this week.

Thursday, May 16, 2019

Abortion discrimination = pregnancy discrimination


Thanks to, among other states, Alabama, Georgia, and Ohio (sorry about that last one), the debate over abortion is raging. Suppose you are staunchly anti-abortion, and you learn that one of your employees is considering, or has had, an abortion. Can you fire her?

Thus far, three courts have looked at this issue, and all three courts have all reached the same conclusion.

No.

Wednesday, May 15, 2019

No, the feds should not ban noncompetes because of #MeToo


A recent op-ed in the USAToday argues that the federal government should outlaw noncompete agreements because they trap workers in abusive workplaces.

Since women who complain about harassment face retaliation and even termination, often the only way to escape it is to find a new job. Yet for many women, continuing their careers with a new employer turns out to be impossible. 
That is because of noncomplete clauses. After they have resigned or even been fired, workers bound by noncompetes cannot accept employment in the same line of work or industry as their former employer for a specified period in a certain city, state or even the entire country. Nearly 30 million working people, including more than 12 million women, are locked into their jobs because of noncompete clauses.…
By depriving them of outside employment opportunities, noncompetes lock victims of harassment into abusive environments. 

I could not disagree more. Noncompete clauses are not responsible for trapping sexual harassment victims in abusive workplaces.

Tuesday, May 14, 2019

Ohio lawmakers seek to expand the protections of the Ohio Whistleblower Act


Laws protecting whistle-blowers from retaliation have a long and storied history in the annals of American law. Indeed, according to The Personal Toll of Whistleblowing, recently published in The New Yorker*, these laws date back 241 years to the American Revolution and the Second Continental Congress:

The first documented whistle-blowing case in the United States took place in 1777, not long after the signing of the Declaration of Independence, when a group of naval officers, including Samuel Shaw and Richard Marven, witnessed their commanding officer torturing British prisoners of war. When they reported the misconduct to Congress, the commanding officer charged Shaw and Marven with libel, and both men were jailed. The following year, Congress passed a law protecting whistle-blowers, and Shaw and Marven were acquitted by a jury.

Monday, May 13, 2019

Crasslighting — Oops, #NotYou is NEVER a defense to #MeToo


Gaslighting — the manipulation of someone by psychological means to question their own sanity. It’s a term you’ve likely heard of.

But, have you heard of crasslighting? Me neither, until I read Did he just harass you or are you imagining it? You might be a victim of ‘crasslighting.’ in The Washington Post.

Friday, May 10, 2019

WIRTW #552 (the “comment of the week” edition)


Big thanks to Kristi Birkeland for the comment of the week, in response to yesterday's 12th blogiversary post.


If I ever I get the t-shirts and coffee mugs printed with this tagline, Kristi gets the first one.

Thursday, May 9, 2019

Happy 12th Anniversary to the Ohio Employer Law Blog


Twelve years ago today I launched the Ohio Employer Law Blog.

On May 9, 2007, I published, The Song Remains the Same — Has Burlington Northern Really Changed the Landscape of Retaliation Claims? Not my finest work, but everyone’s gotta start somewhere.

In the dozen years since, I’ve published 3,135(!) posts, which you have read millions of times. It’s truly astounding to me, and I thank all of you who have read, clicked, shared, commented, and connected with me over the years. The absolute best part of this endeavor is the relationships I’ve built and friendships I’ve made.