When schoolyard bullies become workplace bullies

This is Donovan.

He’s 7 years old. And he has Noonan Syndrome. Noonan Syndrome is genetic disorder caused by one of several genetic mutations. Donovan’s is of the PTPN11 gene. It is a multi-system disorder with an estimated prevalence of 1 in 1,000 – 2,500 births. In Donovan’s case, he has a bleeding (platelet function) disorder, a congenital heart defect (pulmonary valve stenosis), feeding and gastrointestinal issues (Celiac disease), ptosis of his right eye, small stature (for which he takes daily injections of growth hormones), and low-set ears.

DOL's “Persuader Rule” goes live; unions rejoice

The U.S. Department of Labor has issued its long awaited Final Rule reinterpreting the “Advice Exemption” to the Labor Management Reporting and Disclosure Act, otherwise known as the “persuader” rule.

What does this mean for you? In summary, it means that if you engage an outside law firm or other consultant to provide advice, or to otherwise represent you concerning employee organizing, concerted activities, or collective bargaining activities, you must report that engagement to the DOL, and, therefore, also to the union.

The class action is dead … long live the class action! #SCOTUS upholds “representative samples” for class certification

It’s been nearly five years since the Supreme Court decided, in Wal-Mart Stores, Inc. v. Dukes, that the claims of large groups of employees that involve differing calculations of damages must be litigatated as individual claims, and not as a class action.

At the time, and since, may pundits declared the wage-and-hour class action lawsuit dead (or at least with one foot squarely in the grave).

Earlier this week, however, the Supreme Court applied the paddled and shocked the class action back to life.

Employment Law Blog Carnival: The “Candy Cane Children” Edition #ELBC

People seem to like lists, so here’s one to kick off this month’s Employment Law Blog Carnival. Who is the greatest rock band of each decade (according to Jon Hyman)?

• The 1960s — The Beatles (with apologies to the Rolling Stones)
• The 1970s — The Who (with apologies to Led Zeppelin and the Clash)
• The 1980s — U2 (with apologies to Guns N’ Roses and Talking Heads)
• The 1990s — Nirvana (with apologies to Pearl Jam and Green Day)
• The 2000s — White Stripes (with apologies to absolutely no one)

This month’s ELBC will focus on the latter, the White Stripes. They allegedly formed on Bastille Day 1997, and most certainly broke up five years ago. In between, they single-handedly saved rock ‘n’ roll.

Is your employee handbook a contract of employment? Well, does it have a disclaimer?

Employee handbooks come in all shapes and sizes. For example, some employers have policies that create a probationary period for employees during the initial few months of employment. Some employers have progressive discipline policies. Some grant formal appeal rights to employees who are disciplined or terminated. And some set forth terms of compensation, benefits, and time-off.

Is your handbook a contract of employment, or a compilation of discretionary policy statements? The answer depends on whether your handbook has a disclaimer telling employees that they are at-will and cannot rely on the handbook as a contract.

Does HR understand their own personal liability for FMLA violations?

If you’ve ever held supervisor and manager training on any employment-law issue, you know the glazed-over expression of a group of individuals going through the motions. “Oh goody, we have training today. Here’s an hour of my life I’ll never get back,” is what you’ll hear around the coffee machine before they enter the training room.

Want to wake them up and ensure rapt attention? Hit them with the idea of individual liability. Under Ohio law, we have it for discrimination claim. It exists for wage-and-hour claims under the FLSA. And, last week, in Graziadio v. Culinary Institute of Am. [pdf], the 2nd Circuit Court of Appeals held that a manager or supervisor can be individually liable for FMLA violations.

WIRTW #405 (the “Norah live” edition)

This week’s musical highlight comes courtesy of the Cleveland School of Rock Jr. Headliners. What can I say? I’m either a proud dad or a shill for my kid.

Norah live.
Posted by Jon Hyman on Sunday, March 13, 2016

You can catch her live on April 3.

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If you are interest in having your post featured in this month’s Employment Law Blog Carnival, email me your submission by Monday. The carnival goes live March 23.

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

NLRB judge protects the lone wolf in Chipotle social-media firing decision #RaganDisney

I spent last Thursday and Friday in Disney World. It wasn’t a pleasure trip, although Epcot was toured during some down time. I was invited to speak at this year’s Ragan Social Media Conference, which, I have to say, was one of the best organized and produced events I’ve ever attended. It was a day-and-a-half of cutting edge information on using social media for marketing and PR. My session covered how employers can protect their brands from employee social-media missteps. It’s always fun to watch a room full of non-employment lawyers’ mouths gape when I start talking about the NLRB.

So, to anyone out there who was at my session, Chipotle Services LLC, decided earlier this week by an NLRB judge, is mandatory reading.

The case involves an employee fired by Chipotle after he took to his personal Twitter account to voice his displeasure about the state of his wages and other working conditions at Chipotle. For example, in response to a customer who tweeted “Free chipotle is the best thanks,” the employee replied, “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Another, directed at Chipotle’s communication director, concerned a lack of pay for snow days.

The NLRB judge had little trouble concluding that Chipotle had fired the employee for engaging in protected concerted activity: speech about his wages, benefits, or other terms and conditions of employment between or among employees.

I agree that the NLRA protects tweets about wages and days off. Pay attention, however, to how this judge defines “concerted”, as it is becoming apparent that one employee, voicing his concerns to about work on social media, without any engagement from co-workers, is sufficient to constitute “concerted” protected activity:

Kennedy’s tweet concerning snow days was directed to Chipotle’s communications director but visible to others; Kennedy’s other two tweets were in response to customer postings, and likewise visible to others. All these postings had the purpose of educating the public and creating sympathy and support for hourly workers in general and Chipotle’s workers in specific. They did not pertain to wholly personal issues relevant only to Kennedy but were truly group complaints. I conclude that Kennedy’s postings constitute protected concerted activity.

In other words, as long as an employee is addressing a group complaint, the activity is concerted, regardless of whether any other employee engages.

Earlier this year, I predicted the breadth of the NLRB’s coverage of “concerted” in social-media cases:

If, as the Board suggest, employee intent is the measuring stick for whether a lone employee’s activity is concerted, then any employee’s solitary social-media post can be considered concerted merely by the employee stating an intent to initiate or induce group action. And, since social media is inherently social (i.e., group in nature), doesn’t this test suggest that all such activity is concerted.

So, we have another social media case in which an employee triumphs over an employer based on a liberal interpretation of NLRA protections. Fear not employers, for this case has a silver lining. According to Jane von Bergen of the Philadelphia Inquirer, the employee has offered to accept food vouchers in lieu of back pay: “You cannot deny that their food is delicious, but their labor policies were atrocious.” If only every case was that simple to resolve.

The 10 essential cyber security training issues for your employees

Do you know what the biggest threat is to your company’s cyber security? I’ll give you a hint. It’s not the middle-aged man in yesterday’s John Oliver video.

It’s your employees. Cyber attacks target the weakest link, and more often than not that weak is your employees.

According to CFO magazine, nearly half of all data breaches result from careless employees. Whether it’s an employee using a company-issued laptop on an unsecured wifi network, or an employee losing a password-unprotected iPhone, your employees present the greatest risk to the security of your company’s network and data.

What can you do about it? Train your employees. They need to understand the risk of their carelessness, and the steps they can take to mitigate that risk.

Here are 10 issues about which you should be training your employees right now to limit your company’s cyber exposure.

The best argument you’ll hear on why you must train your employees on cyber security

This fake Apple ad, from Last Week Tonight with John Oliver, is the best argument you will hear on why training your employees on cyber security is perhaps the most important thing you can do for your business in 2016.

Come back tomorrow, when I’ll discuss the 10 cyber-security issues about which you should be training your employees right now.

Video killed the lawsuit star

If a picture tells a thousand words, then how many does a video tell?

Last week, the 6th Circuit affirmed the dismissal of a retaliation claim based on a video of an altercation that the plaintiff claimed she had not started.

WIRTW #404 (the “home is where is art is” edition)

We just added this piece of art to our home.

This particular painting is special to our family. If you look closely…

The artist, Anthony Kleem, likes to include friends and family in his paintings, and he happens to love our kids. How could we not buy it?

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

Discrimination

• HR 101: Temporary disabilities and the ADA — via Eric Meyer’s The Employer Handbook Blog
• Dilemma of the Month: When a Personal Matter Gets Professional — via Evil HR Lady, Suzanne Lucas
• Preventing Discrimination For Dummies! — via FisherBroyles
• Transgender Bathroom Access — via Employment Law Lookout
• Does my black face make me look more diverse? — via The Tim Sackett Project
• EEOC Continues Visible Stance on Sexual Orientation Discrimination Protection — via Currents

Social Media & Workplace Technology

• Top 7 Data Security Lessons for In-House Counsel — via In House
• “BYOD”—the pitfalls of bring-your-own-device policies — via Technology for HR
• Home Depot to pay nearly $20M over 2014 data breach that affected more than 40M customers — via ABA Journal Daily News
• Your Boss Cares About Your Health and Happiness—Really — via Fitbit Blog
• Emojis At Work: They’re Not the Enemy — via Blogging4Jobs

HR & Employee Relations

• Ohio Ranks In Top-10 for Small Business Climate — via Ohio Chamber Blog
• Amazon is using scare tactics to deter employee theft — via The Verge
• Who knows what evil lurks in the hearts of employees? The Shadow knows. — via Robin Shea’s Employment & Labor Insider
• Employee Relations! — via Next Blog
• Don’t decide to fire that employee at the end of the day — via Mike Haberman’s Omega HR Solutions
• “When this happens firefighters are praised, but then disciplined.” — via Walter Olson’s Overlawyered
• March Madness in the Workplace: Boosting Morale or Legal Nightmare? — via ERC Insights Blog

Wage & Hour

• 2017 DOL Survey Coming on “Gig” Economy — via Joe’s HR and Benefits Blog
• In the Beginning… — via Compensation Cafe
• Unreported Working Lunches May Still Be Work Time — via Wage & Hour Insights
• Lawyers’ FLSA advice may be discoverable — via Employer Law Report

Labor Relations

• Big Labor’s $420 Million Political Advocacy Budget — via LaborPains.org
• BREAKING: CT Supreme Court Gives Employers Using Independent Contractors A Big Victory — via Dan Schwartz’s Connecticut Employment Law Blog
• The Battle Over the Status of Uber and Lyft Drivers Continues — via Labor Relations Today
• Employers Can’t Press Mute on Employee Solicitations at Work, NLRB Says — via The Employment Brief

OSHA & Workplace Safety

• New workplace safety and environmental crime initiative will use cross-enforcement — via HR Hero Line
• Injury and Illness Recordkeeping and Reporting Requirements – Posting 300A — via OSHA Law Blog
• Eleventh Circuit Upholds OSHA Violation with Participating Supervisor — via OSHA Law Update

Does OSHA provide a defense for employee misconduct? It depends.

As the saying goes, you can’t teach stupid. No matter what safety measure you put in place, your employees will do stupid things at work, and sometimes they will get hurt.

Court rejects customer’s claims based on harassing Facebook posts by employees

Consider the following scenario. An employee makes offensive posts on his personal Facebook page about one of your customers, which include the following:

“I seen Maurice’s bougie ass walking kahului beach road … nigga please!”

A number of other employees comment on or like the post, including a comment to “run that faka over!!! lol.”

When the customer learns of the posts and comments, he complains. You investigate and fire the offending employees.

Case over, right? Not so fast. The customer sued the employer for negligence relating to its supervision, retention, and training of the offending employees.

The EEOC says, “Preventing Discrimination is Good Business”

Are you a small-business owner? Do you have problems understanding your obligations under the federal employment-discrimination laws? Then the EEOC is here for you.

Last week, the agency published a one-page face sheet, entitled, “Preventing Discrimination is Good Business” (available in English and 29 other languages, such as Amharic, Marshallese, or Tagalog … really).

NLRB narrows employer property rights in key solicitation decision

One of an employer’s best tools to stave off labor unions and their organizing campaigns is a no-solicitation policy. It keeps employees focused on work during working hours, and keeps non-employees (including, but not limited to, union organizers) off your property and out of your workplace.

Yet, over the past couple of years, the NLRB has narrowed employers’ no-solicitation rights. For example, employer email systems must now be open for union-related activities during non-working time.

What about low-tech solicitations? Conventional wisdom used to be that employers could prohibit solicitations in work areas during working time and non-working time. Does this work-area rule still hold?

WIRTW #403 (the “royals” edition)

One of the benefits my kids get from going to a K – 12 school is the experience of varsity high-school sports. Don’t get me wrong, Lake Ridge Academy is far from an athletic powerhouse. The school is much more focused on academics and fine arts than sports. However, once in a while, a team catches fire, and, when it does, my kids get to hitch a ride.

Right now, the girls’ basketball team is that team. Tomorrow night, we play Cornerstone Christian (a team we beat in January) for the right to go to Columbus for the State Division IV Final Four. It will be the school’s first ever trip to the Elite Eight in any sport. The Elyria Chronicle-Telegram recaps the thrill of last night’s 41 – 40 come-from-behind victory over the state’s top ranked team.

Go Royals.

Also, I’d be remiss if I didn’t say a thank you to the student from Perry High School who, after I arrived to a very full parking lot, let me park in the press lot after I told her I was a blogger. This is the post I promised you.

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

Is it illegal to “right size” employees to avoid ACA obligations?

In the past six months, I’ve had more questions from clients about group health insurance than I’ve had in the first 18 years of my practice combined. All of the questions start the same: “Our health insurance premiums are out of control. How do we…?”, finished by some inquiry about moving older workers to Medicare, or shifting high-cost workers to the exchange, or some other machination to avoid the Affordable Care Act.

The reality, however, is that the ACA makes it pretty damn hard to move high-cost employees off of your health insurance to combat out-of-control (and still rising) insurance costs.

Dave & Buster’s thought it had the answer—reducing employees from full-time to part-time.

Last month, however, the district court hearing an employee-challenge to this insurance “right sizing” handed round one to the employees.

EEOC sues employers challenging sexual orientation discrimination as Title-VII sex discrimination

Yesterday, the EEOC filed two lawsuits, each claiming that an employer’s discrimination against an LGBT employee violated Title VII’s prohibition against sex discrimination.

From the EEOC’s press release:

DOL looks to move the needle on paid sick leave

Last week, the Department of Labor announced proposed regulations that would expand paid sick leave to the employees of federal contractor and subcontractors. These regulations would implement Executive Order 13706, which President Obama announced last year. According to the DOL, these regulations will provide paid sick leave to 828,000 employees.

Given that our country has over 121 million employees, why does it matter than a scant 0.68% of the American workforce has access to federally mandated paid sick leave?

Happy Leap Day (or, Happy Exempt Employees Work Free Day)

Today is Leap Day, an every-fourth-year occurrence that adjusts for the astronomical anomaly that it takes the Earth 365.25 days, and not 365, to circumnavigate the sun.

What does this have to do with employment law, you might ask?

WIRTW #402 (the “starman” edition)

I realize that these Friday posts have started taking on a decided rock ‘n’ roll feel. It's a hobby, what can I say. If you prefer, you can skip lede and go right to the list of what I read this week.

Wednesday night, the Brit Awards (aka, the British Grammys) were held in London. They did an amazing tribute to David Bowie, which started with a medley played by members of his backing bands throughout the years, and ended with a stirring version of what might be his best song, Life on Mars?, sung by Lorde. I promise, it’s worth a few moments of your time.

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

Language matters when drafting restrictive covenants

Consider the following language in a non-solicitation agreement:

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.

“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.

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?)

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.

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.

The future of rock is in very good hands, the 15-second video evidence. @hsrockoff @schoolofrockcle @rockhall #thisiscle

A video posted by Jon Hyman (@jonhyman) on Feb 14, 2016 at 6:52am PST

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

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.

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?

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.

Scalia

I was on my way to the Rock and Roll Hall of Fame to watch my daughter perform at the High School Rock Off when my phone started going nuts with updates, letting me know that Justice Antonin Scalia had unexpectedly passed away. Everyone will not agree on his legal and constitutional interpretations, but everyone universally agrees that without him, Supreme Court oral arguments will be much less interesting, and Supreme Court opinions will be a whole lot more boring. I cannot remember a Supreme Court without his sharp wit and styling prose, which cannot be replaced.

WIRTW #400 (the “400th” edition)

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

You cannot afford to sleep on harassment complaints

Yesterday, I suggested that harassment prevention is a 365-days-a-year job for employers. Apparently, some employers still need to learn this lesson.

Case in point? Smith v. Rock-Tenn Services, decided yesterday by the 6th Circuit.

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.

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.

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.

Uber is locked in a battles all over the county with its drivers, defending lawsuits claiming that its drivers are employees for wage-and-hour purposes. This case, however, brought in the most employee friendly forum Uber drivers could possibly find, is the first attempt by drivers to organize. And because of the employee-friendliness of the NLRB, this story has the potential to be absolutely huge.

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:

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.

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.

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:

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.

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:

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:

Guest Post: Social Business and HR, Part 2

By Mike Wise

First, thanks again to Jon Hyman for the chance to write on a different but related topic – Social Business. As I mentioned in Part 1, I’m finding that a surprisingly high percentage of HR folks have not yet tapped into the incredible power of the Social Web. Perhaps this series will be helpful, at least at a high level. Feel free to question or comment in the Disqus form at the end of the post.

In Part 1 of this 3-part series on Social Business, the subject was Online Reputation Management. In this Part 2, the focus will be on Social Business and Internal Communications. We will finish the series in Part 3 with a look at the 3 R’s - Recruiting, Recognition, and Retention and how Social Business amplifies those efforts.

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.

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.

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:

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.…