Neither PARTY will directly solicit for employment a current or former employee of the other PARTY who has performed any work in connection with this AGREEMENT. This provision will remain in effect during the term of the SERVICES and for one (1) year from the date of said former employee’s separation of employment from P&G or CONTRACTOR.… Further it is acknowledged that simply hiring an employee of the other PARTY is not a restricted activity in the absence of an improper solicitation as described above.
Thursday, February 25, 2016
Language matters when drafting restrictive covenants
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, February 24, 2016
“Lady Murderface”, Yelp, and the National Labor Relations Act
By now, you’ve likely heard about the employee fired by Yelp for her very public blog post directed at her former employer’s CEO, criticizing her $24,000 annual salary. Here’s a particular biting excerpt:
I wonder what it would be like if I made $24,000 more annually. I could probably get the headlight fixed on my car. And the flat tire. And maybe even get the oil change and renewed registration — but I don’t want to dream too extravagantly. Maybe you could cut out all the coconut waters altogether? You could probably cut back on a lot of the drinks and snacks that are stocked on every single floor. I mean, I could handle losing out on pistachio nuts if I was getting paid enough to afford groceries. No one really eats the pistachios anyway — have you ever tried answering the phone fifty times an hour while eating pistachios? Those hard shells really get in the way of talking to hundreds of customers and restaurants a day.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, February 23, 2016
EEOC is now an open book for employees, grants access to employer position statements
Back in the day, if an employee wanted to obtain a copy of an employer’s EEOC position statement, the employee had to go through a process under the federal Freedom of Information Act. For starters, the employee had to wait until after the EEOC issued a right to sue letter, and the EEOC could deny the request for a variety of reasons.
By back in the day, I mean last week. Because, last week, the EEOC implemented a yuge (inner Trump voice) policy change, which provides for the release of an emplyer’s position statements and non-confidential attachments to an employee, upon request, during the investigation of a charge of discrimination. Employees or their representatives must request the document. The agency will not automatically turn it over. But, employees avoid the formality of the FOIA-request process. FOIA, on the other hand, still governs employers’ requests for copies of employees’ submissions (How is that fair?)
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, February 22, 2016
Two reasons not to forget about the ADA’s interactive process
Two recent EEOC cases illustrate the importance of employers engaging in the ADA’s interactive process to determine if one can offer a disabled employee a reasonable accommodation.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, February 19, 2016
WIRTW #401 (the “rock off” edition)
Last Saturday night Norah performed to a crowd of 1000-plus inside the Rock & Roll Hall of Fame. We weren’t allowed backstage, but heard that she was pacing a trench of nerves into the Rock Hall’s floor before her band took the stage. Was she nervous about having to perform in front of a crowd that large in the most important gig of her young life? Nope. “I don’t get nervous about that, dad.” She was just nervous that the cold she’d been fighting would cause her voice to crack. It didn’t, and she rocked the Rock Hall.
A video posted by Jon Hyman (@jonhyman) on
Here’s the rest of what I read this week:
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Thursday, February 18, 2016
Essential reading: Harvard Business Review’s step-by-step guide to fire someone
File this under posts I wish I’d written. Yesterday, the Harvard Business Review published A Step-by-Step Guide to Firing Someone.
Firing an employee is the most difficult job any business owner, executive, manager, or HR person has to do. I’ve been there. It absolutely sucks. (And it absolutely sucks even more when the fired employee breaks down and starts crying). HBR synthesizes the process in three essentials tips to handle the decision, and five (not-so-easy) steps for the termination itself.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, February 17, 2016
Hug it out, just not necessarily at work
“Do hugs belong in the workplace?“ is the headline of a story on Cleveland.com that caught my attention.
The hug just may be on its way to competing with the handshake as a common workplace greeting. The percentage of people who say they would hug co-workers—that they either know well or haven’t seen in awhile—nearly doubled from five years ago, according to a recent poll.
Of course, one person’s hug is another’s creepy gesture or, worse, inappropriate advance. Where is the workplace line?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, February 16, 2016
Intermittent FMLA does not permit sleeping on the job (usually)
Let’s say you have an employee approved for intermittent FMLA for migraine headaches. Let’s also say co-workers of said employees find her asleep at work during her shift. When you fire the sleeping, migraine suffering employee, do you have potential worries under the FMLA?
According to Lasher v. Medina Hops. (N.D. Ohio 2/5/16), the answer is a resounding “no”. The issue, however, is not as cut-and-dry as this case makes it seem.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, February 15, 2016
Scalia
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, February 12, 2016
WIRTW #400 (the “400th” edition)
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, February 11, 2016
You cannot afford to sleep on harassment complaints
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, February 10, 2016
I hate Valentine’s Day, and employers should too
I hate Valentine’s Day. It’s not a visceral hate; it’s more of a disgustful annoyance. And, no, it’s not because I’m not romantic. Quite the opposite. I believe that we don’t need a special day to celebrate love, but that you do so by how you treat your other half all 365 days of the year. (I love you Colleen). Thankfully my wife’s not a fan of the Day either, so I lose no points for omitting the clichéd dozen roses or candle-lit dinner.
Do you know who else should not be a fan of Valentine’s Day? Employers. Here are three reasons why.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, February 9, 2016
Lying about medical leave fatal to disability claim
On Saturday my 7-year-old made his first reconciliation. To what could a 7-year-old possibly have to confess? If you list the 10 big ones, lying would probably take the top spot for the 7-year-old set. It’s a life lesson, however, that some never seem to learn.
Case in point? Mattessich v. Weatherfield Township (Ohio Ct. App. 2/8/16) [pdf], in which a depression-suffering police officer was terminated for lying about his medical leave.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, February 8, 2016
A labor union filed an Uber-huge representation petition with the NLRB
Politico New York reported last week that International Brotherhood of Electrical Workers, Local 1430, petitioned the NLRB to represent 600 New York area Uber drivers. You can read the representation petition here.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, February 5, 2016
WIRTW #399 (the “happy” edition)
So we’re in the car Wednesday night, and I mention to the fam that I’m excited because, today, a new Starbucks is opening downstairs from my office. Without missing a beat, and with complete sincerity, Donovan, my 7-year-old, says, “Oh dad, I’m so happy for you.” I love my kids.
Here’s the rest of what I read this week:
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Thursday, February 4, 2016
Can an employer prohibit an employee from job hunting during FMLA leave?
Earlier this week, an employee out on FMLA leave posed the following question to the Evil HR Lady:
While I am out for surgery, I was informed of a new job in another hospital. It looks like no one has applied for the position.… Can I apply for this job while I am on leave? What is the consequence of doing so? Can they take my pay back? On one of the FMLA paperwork, it states no job hunting while on FMLA. Is that true? I do not want to be in some legal battle.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, February 3, 2016
Now is the time to restore balance to Ohio’s employment discrimination law: Endorsing the Employment Law Uniformity Act
For lack of more artful description, Ohio’s employment discrimination law is a mess. It exposes employers to claims for up to six years, renders managers and supervisors personally liable for discrimination, contains no less than four different ways for employees to file age discrimination claims (each with different remedies and filing deadlines), and omits any filing prerequisites with the state civil rights agency.
Monday, State Senator Bill Seitz introduced Senate Bill 268 [pdf], the Employment Law Uniformity Act. It is a business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, February 2, 2016
The top 10 mistakes employers keep repeating
Today is Groundhog Day, which, because of the eponymous Bill Murray movie, has become synonymous with repeating the same mistakes over, and over, and over…
In that spirit, I thought we’d take a look at the 10 biggest mistakes that employers keep making.
In no particular order:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, February 1, 2016
EEOC proposed significant pay equality changes to EEO-1
If your company has 100 or more employees, you should be very familiar with the federal government’s EEO-1 survey. The EEOC requires that you annually complete and file this form, which requests demographic on your employees, broken down by protected classes and job categories.
Last Friday, the White House made a game changing announcement about the information it proposes you submit in your EEO-1 filings.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, January 29, 2016
WIRTW #398 (the “doorbell” edition)
Someday, Donovan will comb through the archives of this blog and ask, “Dad, you sure wrote a lot about Norah’s music. What about mine?”
So, in the name of equal time and equal pride, I bring you Zombie Fried Chicken, with Donovan on keys (and big sis on drums), doing the White Stripes “My Doorbell.” (Donovan’s song intro, by the way, was totally spontaneous and improvised, and purely adorable).
Here’s the rest of what I read this week:
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Thursday, January 28, 2016
Consensus starting to form around reasonable reporting rules for off-the-clock overtime pay
It’s been a few years since the 6th Circuit held, in White v. Baptist Memorial Hosp., that an employer is not liable for unpaid overtime if the employee fails to follow an established, reasonable process for to report uncompensated work time.
Yesterday, following the logic of White, the 5th Circuit reached a similar conclusion:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, January 27, 2016
Guest Post: Social Business and HR, Part 2
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Tuesday, January 26, 2016
DOL doubles down on joint employment under the FMLA
Yesterday, we looked at the DOL’s recent guidance on joint employment under the Fair Labor Standards Act. Simultaneously with its FLSA guidance, the DOL also published guidance on joint employment under the FMLA, and it’s definitely worth you time.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, January 25, 2016
The federal assault on joint employment continues
First it was the NLRB. Next it was OSHA. Now, the Department of Labor’s Wage and Hour Division is taking its turn cracking down on joint employment.
Last week, the WHD launched a microsite entitled, Joint Employment under the FLSA. Most notably, this site included the publication a new Administrator’s Interpretation, which picks up the NLRB’s liberalized joint employer standard by relying on indirect or potential control, in addition to actual control, as the lynchpin of joint employment.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, January 22, 2016
WIRTW #397 (the “Woodstock” edition)
I'm well aware that I write a lot about my daughter’s music, but I do so because (a) I know a lot you enjoy it, and (b) I’m a really proud dad. Today, I’m doing so again, because last Saturday Norah blew me away. Her “Psychedelic 60s” show closed with the Jefferson Airplane classic “Somebody to Love”, with Norah absolutely killing it on lead vocals.
You have another chance to catch the show live, tomorrow at the Music Box Supper Club. Norah’s band takes the stage at 1 pm, and the show is free.
Here’s the rest of what I read this week:
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Thursday, January 21, 2016
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?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, January 20, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, January 19, 2016
NLRB continues to slam employers on mandatory arbitration clauses
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, January 15, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, January 14, 2016
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 _________?”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, January 13, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, January 12, 2016
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).
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, January 11, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, January 8, 2016
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:
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Thursday, January 7, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, January 6, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, January 5, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, January 4, 2016
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.…
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, December 22, 2015
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)
and a lawsuit for my company.
my employment lawyer gave to me
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.
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.
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.
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.
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.
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.
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.
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.
I'll be back on January 4, 2016, to kick off the new year.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, December 21, 2015
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, December 18, 2015
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:
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Thursday, December 17, 2015
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?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, December 16, 2015
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, December 15, 2015
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, December 14, 2015
Professionalism, social media, and the workplace
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Friday, December 11, 2015
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:
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Thursday, December 10, 2015
#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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, December 9, 2015
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, December 8, 2015
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, December 7, 2015
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, December 4, 2015
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:
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Thursday, December 3, 2015
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].
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, December 2, 2015
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, December 1, 2015
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?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, November 30, 2015
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?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, November 25, 2015
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, November 24, 2015
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, November 23, 2015
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?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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