SCOTUS calls a balk on attempted class-action pick-offs

It’s been almost three years since the Supreme Court decided, in Genesis HealthCare Corp. v. Symczyk, that an employer moots an FLSA collective action when the named plaintiff rejects an offer of judgment that would have satisfied all of the claims brought in the case.

Or did it?

Appellate court reinstates sex-discrimination claim of transgendered worker

A federal appellate court reinstated the sex-discrimination claim of a transgender auto mechanic. Credit Nation Auto Sales fired Jennifer Chavez less than three months after she notified it of her gender transition.

The employer argued that it fired her because it caught her sleeping in a customer’s vehicle while on the clock. Even though the court concluded that the employer’s reason was “true and legitimate”, it nevertheless reversed the trial court’s dismissal of the sex-discrimination claim.

NLRB continues to slam employers on mandatory arbitration clauses

Last week, the Huffington Post reported that Guitar Center was requiring all of its employees to choose between signing arbitration agreements or losing their jobs.

I have been critical of employers’ use of arbitration agreements because I do not believe that they provide employers with a quicker, cheaper, and less risky alternative to a judicial resolution of employment disputes.

The NLRB is also highly critical of arbitration agreements, but for a wholly different reason. The NLRB believes that such clauses unlawfully infringe on the rights of employees to engage in protected concerted activity.

WIRTW #396 (the “walking dead”) edition

I love the creativity of children, mine or otherwise. Donovan can’t recall which of his bandmates came up with the name for his Rock 101 band (performing two free shows at the Music Box Super Club — Jan. 16 @ 2:30 and Jan. 23 @ 1:00), and it’s too good not to share: Zombie Fried Chicken.

There are bands everywhere that wish they had thought of the name first. Too bad, it’s taken.

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

Ohio court muddles the issue of counterclaims-as-retaliation

Friedrich Nietzsche once said, “It is impossible to suffer without making someone pay for it; every complaint already contains revenge.” Litigation, however, is no place for revenge. The question I am most asked by clients after they are sued, besides, “How much is this going to cost me,” and “After I win I can collect my attorneys’ fees from that bastard,” is, “How do I countersue that bastard for _________?”

A recent Ohio appellate decision will, unfortunately, muddle the answer to this question.

OSHA now thinks that it can cite facilities it hasn’t even visited

Central Transport operates trucking terminals around the country. As a result of OSHA’s investigation of one facility in Massachusetts, the agency fined the company $330,800 for violations relating to powered industrial trucks. That, in and of itself, is not that remarkable. What OSHA did next, however, should cause your head to spin.

EEOC stakes its turf on the issue of sexual orientation discrimination

As I thought of which David Bowie song to support today’s effort, the one that leapt to mind is “Space Oddity” (I was going to use “Changes”, but Dan Schwartz already claimed it for his post yesterday).

To me, it is a complete oddity that, in the 2016, it is still statutorily legal for an employer to fire an employee because of that employee’s sexual orientation. On this point, the EEOC and I see eye-to-eye. The difference, however, is that the EEOC is in a position do so something about it. What it is not doing is sitting around and waiting for Congress to do something about it.

Employers feeling good about win in EEOC wellness case

Nine months ago, the EEOC published proposed regulations detailing how and when employers can maintain wellness incentives for employees under group health plans without running afoul of the ADA’s voluntariness requirements for medical exams.

In the closing minutes of 2015, a Wisconsin federal court issued an opinion in one of the first lawsuits filed by the EEOC that had challenged an employer wellness program as an ADA violation. The resulting victory for the employer may cause the EEOC to rethink its wellness-incentive strategy.

WIRTW #395 (the “rock 'n' roll grade school” edition)

It’s been a bit since I’ve shared any music from Norah’s gigs, so I thought I’d share a clip of three songs from her show last weekend (blue hair and all) with the School of Rock Jr. Headliners.


As for Norah’s bands, you have a few opportunities to see them live over the next few weeks (with more to be added):

• Jan. 16, Norah’s Psychedelic 60s show takes the stage at the Music Box Supper Club, beginning a 3 pm, with a short set by Donovan’s Rock 101 band leading off at 2:30.
• Jan. 23, Norah’s Psychedelic 60s show again performs at the Music Box Supper Club, beginning a 1 pm, followed by Donovan’s Rock 101 band at 2:30.
• Feb. 7, the School of Rock Jr. Headliners continue their monthly residency at Coda, in a pre-Superbowl show from 1 – 4.
• Feb. 13, the Jr. Headliners play the Tri-C High School Rock-Off Finals, on the main stage at the Rock & Roll Hall of Fame.

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

And we have an early leader for worst employer of the year

A federal court judge has ordered a Philadelphia-area publishing company, American Future Systems, to pay its employees $1.75 million in unpaid wages. The company’s sin? It docked its employees for time spent going to the bathroom.

According to OSHA, Ohio is one of the unsafest states for workers

Did you know that OSHA publishes statistics for high-value enforcement cases? Each week, OSHA updates a state-by-state list of enforcement cases with initial penalties above $40,000.

Since we just wrapped 2015, I thought it was a good time to take a peak at the list to grab an annual snapshot.

Don’t ignore reasonable accommodations in the application process

Eliminating barriers in recruitment and hiring is one of six national priorities identified by EEOC’s Strategic Enforcement Plan. Large national employers provide the EEOC with a soapbox to broadcast this agenda. Thus, a lawsuit filed by the agency against McDonald’s Corp. for its alleged refusal to interview a deaf job applicant is a perfect ADA-storm.

NLRB champions the lone wolf in latest protected concerted activity decision

In Whole Foods Market [pdf], the NLRB held that the employer’s rules prohibiting employees’ use of recording devices in the workplace violated their rights to engage in protected concerted activity under the National Labor Relations Act.

The unlawful policies read as follows:

It is a violation of Whole Foods Market policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received.…

The 12 Days of Employment Law Christmas (2015 Edition)

For the past three Noels, I published “The 12 Days of Employment Law Christmas.” As this has become a year-end tradition at the blog, I’m sharing it again (with updated links). If you’re feeling brave, post a video of yourself singing along.

Have a great end to your 2015, and happy holidays, regardless of your holiday of choice.

(Some musical accompaniment)

On the first day of Christmas,
my employment lawyer gave to me
a lawsuit for my company.

 

On the second day of Christmas,
my employment lawyer gave to me
2 trade secrets,

and a lawsuit for my company.

 

On the third day of Christmas,
my employment lawyer gave to me
3 FMLA notices,

2 trade secrets,
and a lawsuit for my company.

 

On the fourth day of Christmas,
my employment lawyer gave to me
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

On the fifth day of Christmas,
my employment lawyer gave to me
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the sixth day of Christmas,
my employment lawyer gave to me
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

On the seventh day of Christmas,
my employment lawyer gave to me
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

On the eighth day of Christmas,
my employment lawyer gave to me 
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

On the ninth day of Christmas,
my employment lawyer gave to me
9 OSHA penalties,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

On the tenth day of Christmas,
my employment lawyer gave to me
10 labor campaigns,
9 OSHA penalties,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

On the eleventh day of Christmas,
my employment lawyer gave to me
11 personnel manuals,
10 labor campaigns,
9 OSHA penalties,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

On the twelfth day of Christmas,
my employment lawyer gave to me
12 disabled workers,
11 personnel manuals,
10 labor campaigns,
9 OSHA penalties,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

Merry Christmas!

I'll be back on January 4, 2016, to kick off the new year.

 

7th Circuit delivers employers an early Christmas gift in EEOC severance agreement case

In EEOC v. CVS Pharmacy, Inc., the EEOC challenged what I have previously described as several garden-variety, boilerplate provisions in a severance agreement. I’ve also previously predicted that a win for the EEOC in this case would be ruinous for employers.

Late last week, the 7th Circuit affirmed the decision of the district court, which had dismissed the EEOC’s lawsuit based on its failure to conciliate with CVS prior to filing suit.

And, the 7th Circuit agreed, affirming the case on those grounds. But, the 7th Circuit also went further, and offered hope to employers this federal courts will not stand for the folly the EEOC is trying to put forth by filing this type of case.

WIRTW #394 (the “re-gift” edition)

What do you do with gifts that are less than desirable? John Oliver shares his ideas on the dos and don’ts of re-gifting.

I won’t get mad if you re-gift this post or any others of mine to your reader or followers.

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

What Star Wars teaches us about employee relations #TheForceAwakens

My earliest cinematic memories involve Star Wars.

I don’t really remember seeing A New Hope in the theater (I was only 4 years old), but I know I did. I vividly remember watching The Empire Strikes Back with my dad at the Nashaminy Mall. The theater was packed, we were stuck behind two towering men, and I watched with my head peaking between their seats. That’s where my jaw hit the floor when Vader proclaimed that he was Luke’s father. And, with my fandom at a crescendo, I remember my parents pulling me out of school on opening day of Return of the Jedi so that we could wait in line to ensure our seats.

Thank god for Fandango, because Donovan, with his now one-tracked Star Wars mind, and I can see The Force Awakens without disrupting his schooling. Saturday afternoon, I will experience the pure joy of introducing my son to a new Star Wars movie.

The premier of Episode VII has got me thinking, what can Star Wars teach us about employment law?

Why we accommodate employees

Lyerly v. Southwest Airlines (S.D. Tex. 12/9/15) provides a textbook example of why we accommodate employees. This employer bent over backwards to accommodate an ill employee, and, as a result, had little difficulty in defeating her subsequent disability-discrimination lawsuit.

What you need to know (for now) about smartphone use and overtime pay

I first wrote about the possibility of employees seeking unpaid overtime for time spent away from work checking emails on mobile devices all the way back in 2007, and have kept writing about it since (for example, here and here). Now, more than 8 years later, we finally have the first judicial decision on whether non-exempt employees are owed overtime or other compensation for this off-the-clock time. The result is a mixed bag for employers.

Professionalism, social media, and the workplace

An employee was recently terminated because of this post on his personal Facebook page:

WIRTW #393 (the “Darth Trump” edition)

The Internet was invented in 1983. It’s taken me 32 years to figure out why. The Internet was invented so that someone could replace audio of Darth Vader with audio of Donald Trump in Star Wars clips.

Darth Trump wins the Internet.

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

#ElderlyChristmasSongs and age discrimination

Yesterday, #ElderlyChristmasSongs trended on Twitter. Yes, it’s meant to be a joke, and, yes, some were even funny. Now here’s the part where I get to play Employment Law Scrooge.

Alcoholism and ADA: former USC coach Steve Sarkisian files suit over his termination

On October 12, USC fired its head football coach, Steve Sarkisian. Yesterday, Sarkisian filed a 31-page, 14-count complaint in California state court challenging his termination. The crux of his claims? That USC violated state disability-discrimination laws by terminating him because of his disability and failing to accommodate his disability—alcoholism. 

There is no doubt that the ADA protects alcoholism as a disability. The law, however, draws a line between protected addiction and unprotected on-the-job misconduct , even when the former causes the latter.

This case will test the limits of that line.

U.S. Chamber takes on the NLRB’s Theater of the Absurd

If you’ve been reading my blog for any length of time, what I am about to tell you should not come as a shock—I’m not a huge fan of the current iteration of the NLRB.

Yes, labor unions have a right to exist, and, yes, employees have the right to join them, and, yes, unions have the right to collectively bargain for wages, hours, and other terms and conditions of employment. When the NLRB operates correctly, it balances the rights of employers, unions, and employees to maintain industrial peace. Currently, the NLRB is not operating correctly.

My main critique of the NLRB is not with its handling of the 7% of the American workforce that is collectively bargained (although that has issues too), but instead with its handling of the other 93%. The NLRB has waged a war over the past five years on the issue of protected concerted activity, and nowhere do the NLRB’s opinion and my opinion differ more than over the issue of employee handbooks and workplace policies.

Can you legally deck the workplace halls?

The holiday season is in full swing. Gifts are flying off the shelves, FedEx is delivering too many Amazon-logoed boxes to count, and lights, trees, and wreaths are everywhere.

What about the workplace? Can you legally decorate for the holidays at work? And, if you do, does the law require that you accommodate all religions in your holiday displays? The answer might surprise you.

WIRTW #392 (the “miles and miles and miles” edition)

Yesterday afternoon was the Fall Play-In at my daughter’s school. It’s essentially a music recital for the kids in grades K – 5 who take private music lessons. Amid a chorus of Christmas and classical pieces on the grand piano, Norah rocked The Who’s I Can See For Miles on her Fender, which she recently started learning. Like always she’s her own toughest critic. To me, and everyone else there, she sounded great.

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

Are you prepared for an active shooter at your workplace?

Today’s post was going to be about accommodating different holiday traditions at work, but that post will have to wait. Yesterday, San Bernardino happened.

It’s not right that we have to think about how to respond if an active shooter enters your workplace. It’s not right that the phrase active shooter is even part of our vocabulary. But, we do, and it is. And your business needs to know how to respond in the event this evil enters your business.

Thankfully, your friendly neighborhood Department of Homeland Security has put together a guide on how to respond to an active shooter [pdf].

Does the ADA protect Charlie Sheen? You bet.

Perhaps it’s a coincidence that the EEOC released guidance on the ADA’s protection of HIV-positive employees within two weeks of Charlie Sheen announcing his diagnosis. Or, perhaps the EEOC seized on an opportunity to spread awareness about an important issue.

Regardless, yesterday the EEOC published information on the legal rights of employees living with HIV.

Most importantly, employers need to understand that the the ADA makes no distinction between an employee who has asymptomatic HIV and one who suffers with the AIDS virus. An employer cannot discriminate against an employee because of one’s HIV status, and an employer must make reasonable accommodation, if necessary, to enable that employee to perform the essential functions of the job.

Wage-and-hour issues continue to confound employers, with more looming

Two stories on Employment Law360 caught my attention: McDonald’s To Pay $1.5M To Settle Workers' Wage Suit and Wage Suits Hit Record High Amid Focus On Worker Rights.

First, McDonald’s Corp. agreed to pay $1.5 million to settle a lawsuit claiming that it had failed to compensate a class of employees for time associated with cleaning work uniforms.

On the heels of that story, Employment Law360 reported that new federal-court wage-and-hour suits hit an all-time high in 2015, up 8% from 2014 (8,781 versus 8,160).

What does this mean for employers?

Should you allow employees to shop online from work?

Today is Cyber Monday, the day online retailers promote their (alleged) deepest holiday discounts. It is estimated that more than 125 million Americans will take advantage of these sales and shop online today. And, many, if not most, of them will do so from work.

The latest available numbers suggest that more and more companies are allowing employees to shop online from work. As of 2014, 27% of employers permit unrestricted access to employees shopping online while at work, up from 16% in 2013 and 10% and 2012. Meanwhile, 42% allow online shopping but monitor for excessive use, while 30% block access to online shopping sites. Similar data is not yet available for 2015, but one can assume that these numbers have continued to trend towards greater access for employees.

Yet, just because companies allow a practice to occur does not mean it makes good business sense. Should you turn a blind eye towards you employees’ online shopping habits, not just today, but across the board? Or, should you permit more open access?

Everything you want to know about employee holiday pay (but are afraid to ask)

Yesterday I said that I’d be back next week, but then I checked the analytics for my site and noticed a huge spike for a post that digs deep into the archives: 8 things you need to know about holiday pay.

So, since tomorrow is Turkey Day, with most businesses closed, the magic of a quick cut-and-paste brings you everything you wanted to know about holiday pay for your employees.

For those of you who have Thursday and Friday off, enjoy your holiday weekend. Eat, drink, shop, be merry, and, most of all, enjoy your families and be thankful for all that you have.

Announcing my induction to the Blawg 100 Hall of Fame

Most people assume that the Rock & Roll Hall of Fame indicated seminal acts such as the Rolling Stones as part of the museum’s inaugural class. Those assumptions are wrong. The Stones did not earn their enshrinement until 1989, in the Hall’s fourth year.

I guess I’m the Rolling Stones of legal bloggers. Yesterday, the ABA Journal inducted me into its Blawg 100 Hall of Fame, in the fourth year the magazine has bestowed such an honor. It also marks my sixth consecutive (and last) honor in the Blawg 100. As a Hall of Famer, I’m required to stand aside for future Blawg 100 lists to make room for new blood.

One early unexpected result from the NLRB’s ambush election rules

The first six months of the NLRB’s ambush election rules have resulted in one expected result and one unexpected result.

On the expected front, the median time from the filing of a representation petition to the holding of an election has dropped nearly 40 percent, from 38 days to 23 days.

What is the unexpected result?

WIRTW #391 (the “headliner” edition)

In my never-ending quest to turn my legal blog into a promotional blog for my daughter’s nascent music career, I bring you the debut performance of this year’s School of Rock Jr. Headliners — Sunday, December 6, from 4 to 8 pm, at Coda (a new, and supposed very cool, music venue owned by Cleveland chef and restaurateur Dante Boccuzzi).

For the uninitiated, the Jr. Headliners is SoR’s audition-only band for kids 8th grade and under (there is another Headliner band for high schoolers, which will also be on the bill). Norah earned her spot on her vocal chops.

Here’s a tease from the band’s “preview” performance at SoR’s annual Halloween bash — Jet’s Are You Gonna Be My Girl.

My standing offer is still good. If you’re at the gig, say hi, and mention the blog, your next drink of choice is on me.

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

New workplace app raises old issues

At the beginning of 2015, I reported on the launch of a new app — Memo — which allowed employees to post anonymous comments or complaints about their workplaces. Microsoft has now joined the fray of workplace griping apps with one of its own, called Forum.

According to the app’s description, it “lets ideas thrive, facilitates open dialogue within organizations, and enables employees to freely express themselves.” More importantly, unlike Memo, Forum appears to be non-anonymous. From iMore: “Forum has apparently been designed primarily for businesses to give their employees a chance to speak their minds and connect with their fellow workers and executives.”
 

The cost to defend a discrimination lawsuit (and can you do anything about it)

Two and a half years ago I asked, How much does it cost to defend an employment lawsuit? My answer:

The reality is that defending a discrimination or other employment lawsuit is expensive. Defending a case through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000.

Oh, how I love to be right.

John Oliver shares his thoughts on “Ban the Box” #ShouldWeBanTheBox

On September 30, the Ohio House passed the Fair Hiring Act, which would prohibit the State of Ohio from including on any employment application for a state job any question concerning the criminal background of the applicant. The measure is now being considered by Ohio’s Senate, which is separately considering a different bill that would apply the same prohibition to all Ohio employers, public and private.

I’ve previously shared my thoughts on this brand of legislation, known as “Ban the Box.” Short version—I’m not a fan.

We stand with France; we stand against discrimination

Photo by Jon Hyman, 8/6/15

What happened Friday evening in France is unfathomable. Except, really, it isn’t. We experienced it 15 years ago in New York City. And, in the aftermath of 9/11, discrimination against Muslims and Arabs increased by 250 percent.

From the EEOC:

WIRTW #390 (the “cards against HR” edition) @cardsHR

Have you ever played Cards Against Humanity? It’s a very adult version of Apples to Apples. I made the mistake of playing with my mom, and let’s just say that I learned some things that a child should never know about his mother, no matter their respective ages. Hilarious things, but, all things being equal, the laughs weren’t worth the memory scars.

HireVue, obvious fans of the game, came up with a fabulous promotional idea. They call it Cards Against HR, and my deck came in mail earlier this week. When I tweeted HireVue my love of its idea, they challenged me to post a picture of the best (or worst) hand I could come up with.

@jonhyman Show us the best (or worst) cards that you get! - Nicole

— HireVue (@hirevue) November 9, 2015

Well, HireVue, I am never one to shrink from a challenge.

 

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

What can go wrong when co-workers date? A lot.

True confession time. I watch The Voice. It’s not like it’s at the top of my DVR, but, my remote always seem to stop on NBC between 8 and 10 on Monday and Tuesday nights. (My pick to win this season: Amy Vachal). So, when I heard that Team Shelton and Team Gwen had formed one team outside of work, I thought, “What a great opportunity to write a blog post on office romances.” (This is how the mind of blogger works).

What can do wrong with office romances? As it turns out, a lot. So, in the spirit of The Voice, here’s 10 reasons co-workers shouldn’t turn their chairs for each other.

An injury without an injury — part 2? #SCOTUS and collective wage/hour violations

Can a plaintiff support a collective lawsuit if some of the individuals in the purported class have not suffered any harm? The Supreme Court took up this question during yesterday’s oral argument in Tyson Foods v. Bouaphakeo, a case that will go a long way to deciding the continued viability of class or collective actions to decide wage and hour lawsuits.

The underlying legal issue is a familiar one: donning and doffing (that is, compensation for time spent putting on, and taking off, protective gear). This case also carries forward themes from 2011’s Wal-Mart Stores v. Dukes decision (which opined on the non-viability of a nationwide class action in which the class members lacked common harm), and last week’s Spokeo v. Robins oral argument (which will decide if a plaintiff has standing to bring a lawsuit for a technical violation of the Fair Credit Reporting Act if the individual suffered no resulting concrete harm).

So, what is Bouaphakeo all about?

What can you do about today’s “Fight for 15” protests?

Today, workers will protest in 270 different cities, clamoring for a higher $15 minimum wage. It’s part of a broader movement called Fight for 15. The organization has provided employees explicit instructions on how to execute a one-day strike, like those that will happen today.

Guest post: Social Business and HR, Part 1 — Online Reputation Management in the Context of HR

By Mike Wise

Today, we are going to try something new — a guest post. Readers, meet Mike Wise. Mike will be joining us for a three-part series over the next three months to share his thoughts on the social business and human resources. Today is Part 1: Online Reputation Management in the Context of HR.

WIRTW #389 (the “you love me, you really love me” edition) #LoveYourLawyerDay

Today is National Love Your Lawyer Day (really). From the American Lawyers Public Image Association:

Around the world, Love Your Lawyer Day… is the one day of the year designated to celebrate lawyers…. Our goal is to highlight the good that lawyers do, often thanklessly….

Is it too much to ask for people to refrain from lawyer bashing and telling tasteless lawyer jokes for a single day? Surely you can do it. And, if for some reason, you're unable to tame your tongue for that 24-hour span (like if you're a late-night talk show host), then donate $20 to charity for every joke you tell. Deal?

This special day is not just about acknowledging and celebrating legal professionals. One of the initiatives for *Global* Lawyer Your Lawyer Day is to ask lawyers to either perform one hour of pro bono work or donate the equivalent of one billable hour to their favorite charity.

Do you love your lawyer—either me (hint, hint) or someone else? Show your love, in the comments below, or hit me on Twitter @jonhyman with #LoveYourLawyerDay. As for me, I’ll pick up my end of the bargain by donating my one hour of pro bono work.

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

OSHA’s penalties are on the rise

Today’s post originally appeared on Meyers Roman’s Ohio OSHA Law Blog, but it’s worth reprinting for my readers.

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Have you subscribed to our new OSHA blog? If not, what are you waiting for?

Subscribe by email here, or by RSS here.

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Earlier this week, President Obama signed into law the Bipartisan Budget Act of 2015. On its surface, it funds the federal government through 2017 and prevents any federal shutdowns during that time. Employers that read the fine-print, however, might be in for an OSHA-related shock.

NLRB provides employers a roadmap to a legally compliant off-duty access policy

Can an employer lawfully limit non-employees’ access to its facility? On its face, such a question might seem silly. After all, an employer should be able to control its property, right? What about access by union organizers? Does this wrinkle change the answer?

In Marina Del Rey Hosp. (10/22/15) [pdf], the National Labor Relations Board considered the following access policy:

Off-duty employees may access the Hospital only as expressly authorized by this policy. An off-duty employee is any employee who has completed or not yet commenced his/her shift.

An off-duty employee is not allowed to enter or re-enter the interior of the Hospital or any Hospital work area, except to visit a patient, receive medical treatment, or conduct hospital-related business. “Hospital related-business” is defined as the pursuit of an employee’s normal duties or duties as specifically directed by management.

An off-duty employee may have access to non-working, exterior areas of the Hospital, including exterior building entry and exit areas and parking lots.

Any employee who violates this Policy will be subject to disciplinary action up to and including termination.

Did it pass NLRB-muster?

An injury without an injury? #SCOTUS, standing, and the Fair Credit Reporting Act.

Yesterday, the Supreme Court heard oral argument in Spokeo, Inc. v. Robins. This case should answer a very important question for employers: Does a plaintiff have standing to bring a lawsuit for a technical violation of the Fair Credit Reporting Act if the individual suffered no resulting concrete harm? The implications of this case are huge.

EEOC proposed new rules for GINA to encompass employer wellness plans

Last week, the EEOC announced that it plans to amend its regulations to the Genetic Information Nondiscrimination Act to permit employees to provide health information about their spouses in exchange for certain financial and other incentives as part of employer wellness programs.

Earlier this year, the EEOC published proposed ADA regulations, which would permit financial incentives for employee participation in employer wellness programs so long as they remain at or below 30% of the total cost of employee-only coverage. As long as financial incentive remains at or below the 30% threshold, the wellness program is considered a lawful, voluntary medical exam under the ADA.

WIRTW #388 (the “queen of all the world” edition)

I’ve decided that when I grow up, I want to be Norah. She has a pretty good life.

Guess who’s added “new guitar” to the top of her Christmas list?

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Please check out the latest post on Meyers Roman’s new Ohio OSHA Law Blog — Federal court slaps down OSHA’s broad interpretation of its machine-guarding standard. And, while you’re there, take a minute to subscribe to receive updates via RSS or email.

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

It’s not illegal to give a negative job reference, but…

When you receive a phone call from a company looking for information on a former employee that was a less than stellar employee, or worse, fired, do you?

(a) Ignore it.
(b) Confirm only the fact of prior employment and dates.
(c) Give a truthful, negative reference.

Most employers do either “a” or “b”, while very few opt for “c”. Many employers avoid “c” because they fear liability if the ex-employee loses a job because of a negative reference. Yet, in Ohio and elsewhere, there is nothing illegal about providing truthful, negative information.

Illustrating the importance of training your employees on the ADA

By now you’ve likely heard the story about the blind college student denied service by a Cleveland-area bakery because she was accompanied by her seeing-eye dog. Rather than vilify this establishment (which, god knows, has been done enough on Facebook, and Yelp, and just about everywhere else on the Internet), we should instead use this mistake as a teachable moment for all employers everywhere.

NLRB updates its policy memo on e-signatures for union petitions

Earlier this year, the NLRB began accepting electronic signatures in support of an employee’s showing of interesting in support of a labor union. The Board has begun accepting e-signed documents, provided that they meet the following four criteria.

Employers might not “like” this protected concerted activity decision

Does the National Labor Relations Act protect the mere act of an employee clicking the “Like” button on Facebook? According to Triple D, LLC v. NLRB (2nd Cir. 10/21/15) [pdf], the answer is yes.

WIRTW #387 (the “most messed up” edition)

If all of my musings of he past couple of year about the Old 97’s has piqued your interest, you can check them out in person, tomorrow (Saturday) night at the Beachland Ballroom.

If you’re there, look for my family and me up front, by the stage, singing and dancing the night away.

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

More on marijuana and off-duty conduct laws

The Browns still can’t beat the Broncos, and, it appears that Ohio’s proposed off-duty conduct law is a whole lot worse for employers than Colorado’s similar (but very different) statute.

I received an email from a long-standing reader, asking if I could reconcile my opinion that Ohio’s proposed off-duty conduct law would prohibit an Ohio employer from terminating an employee for off-duty marijuana use if Issue 3 [pdf] passes, with the decision of the Colorado Supreme Court in Coates v Dish Network [pdf], which held that Colorado’s off-duty conduct law did not prohibit such a termination despite that state’s legalization of pot.

It all comes down to statutory language.

Don’t call the whole thing off when negotiating IP rights with employees

Tomaydo-Tomahhdo is a local sandwich shop, and a purveyor of damn fine paninis and wraps. As for litigation, let’s say its lunches are way better. It sued one of its former chefs, claiming that he stole its book of recipes to open a competing catering business. Ultimately, the restaurant lost its lawsuit, which it had framed as a copyright infringement claim. The court concluded [pdf] that there is nothing original in a compilation of sandwich recipes that copyright law protects.

What could this employer have done differently to protect its intellectual property. It could have gotten in it in writing from the employee.

Ohio’s attempt at an off-duty conduct law creates many more problems than it solves

It has become increasingly difficult to separate our private lives from our professional lives. Technology bleeds into every nook and cranny of our existence, and allows the workplace to stretch beyond the traditional 9-to-5 into a 24/7 relationship. Partly for this reason, 29 states have what are known as off-duty conduct laws — laws that protect employees’ jobs from adverse actions based on their exercise of lawful conduct outside of the workplace. Think smoking, for example. In these 29 states, it is illegal for an employer to fire an employee who smokes away from work. The employer can still prohibit smoking at the workplace, but when the employee is on his or her own private time, the conduct is off limits to the employer.

Ohio is not one of these 29 states. Senate Bill 180, however, is looking to change that.

The other side of the coin on the appropriate response to harassment

Last week I discussed the importance of a timely and effective remedial response by an employer to an employee’s harassment complaint. Today, I examine the other side of the coin—what happens when an employer does not take proactive steps to eliminate harassment from the workplace.

WIRTW #386 (the “onion” edition)

I’ve the reading the Onion for years. It’s consistently funny, often offensive, and seldom disappoints. Here’s some quick hits (all, surprisingly, SFW) published by the Onion over the past year.

• Impressive New Hire Figures Out Bare Minimum Of Work Job Requires On First Day
• Boss Able To Seamlessly Blend Constructive Criticism With Personal Attacks
• Company Flat-Out Asks Female Candidate How Much Mileage They Can Get Out Of Her Before She Has Baby
• Jeff Bezos Assures Amazon Employees That HR Working 100 Hours A Week To Address Their Complaints
• HR Director Reminds Employees That Any Crying Done At Office Must Be Work-Related
• HR Sends Out Reminder Email About Not Scrawling ‘Revenge’ In Blood In Conference Room

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

Compensable working time : FLSA :: Disability : Pre-2009 ADA

Think back to when you took your SATs, many years ago—number-2 pencils, plastic school chairs and laminate-topped desks, florescent lights, nervous sweat, and, the bane of many a high-schooler, the analogies that comprise so much of the SAT’s verbal section. Remember “dog : bark :: cat : meow”?

Today, I am going to propose an employment-law, wage-and-hour analogy. It goes like this:

Compensable working time : FLSA :: Disability : Pre-2009 ADA

What does this mean (and how dare I make you think about your SATs for the first time in forever)?

John Oliver on OSHA (and a not-so-subtle shout-out to my firm’s new OSHA blog)

On this week’s Last Week Tonight, John Oliver gives OSHA a pass on its slack investigations of North Dakota oil field accidents. He blames OSHA’s inactivity on its lack of resources coupled with the oil companies’ use of subcontracted employees.

Just because harassment is offensive doesn’t make it illegal

Clifford Harris is a practicing member of the Voodoo religion. His co-workers at Electro-Motive Diesel often expressed their opinion about his religion, calling him “crazy” and describing it as “evil”. (For what it’s worth, they might not have been that off base—Harris once got called into a meeting with his supervisor after he was accused of blowing Voodoo dust on a co-worker.)

Be careful what you email (yes, this is a lesson I need to keep repeating)

Two USERRA posts within four days? What is this world coming to?

In Arroyo v. Volvo Group North America (7th Cir. 10/6/15), the appellate court was faced with the issue of whether the district court correctly dismissed an Army Reservist’s USERRA lawsuit. Volvo claimed that it fired LuzMaria Arroyo for violations of its attendance policy. The court, however, thought that the following emails exchanged between her supervisors suggested otherwise:

• “I find myself with a dilemma if I were to discipline a person for taking too much time off for military reserve duty…. I certainly give her credit for serving our country but of course I am also responsible for our business needs.”
• “First, we do not have to grant time off for [Arroyo’s] travel time. Her legal obligation is 2 weeks per year, which we do give off, and 1 weekend per month. The drills she attended were most likely extra training, which we do not have to grant the time. We do not have to give extra time for her travel to and from her weekend duty. She does have the option to transfer to a closer unit, we cannot make her transfer.”
• “Unfortunately, there isn’t a lot we can do…. Per the law we have to wait for her. Sorry it isn’t what you wanted to hear.” (after her deployment to Baghdad.)
• “[Arroyo] is really becoming a pain with all this.”

WIRTW #385 (the “there’s no such thing as a free lunch…” edition)

Retailer Urban Outfitters is trying to new strategy to staff its fulfillment centers for the holiday season. It’s asking its salaried employees to work weekends. And, since they are already paid a salary, the work comes with the added bonus of no extra pay, but with a free lunch, and transportation (if needed).

A lesson on USERRA and military-status discrimination

The Uniformed Services Employment and Reemployment Rights Act guarantees servicemembers the right to be free from discrimination in hiring, re-hiring or reinstatement, retention, promotion, or any benefit of employment on the basis of that membership, application for membership, performance of service, application for service, or obligation in the armed forces.

Intermittent leave for exempt employees: the survey results

Last week, I asked a simple question: should employer require salaried, exempt employees to take intermittent FMLA leave as unpaid leave, and deduct hours spent on leave from their pay.

Here are the results: