Tuesday, May 24, 2016
#SCOTUS extends time limits for constructive discharge claims
Yesterday, in Green v. Brennan [pdf] (background here), the Supreme Court considered when the statute of limitations begins to run for a constructive discharge claim—when the employee resigns or at the time of an employer’s last allegedly discriminatory act allegedly causing the resignation.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, May 23, 2016
When must employees be paid for off-the-clock overtime?
Just about a year ago, in Moran v. Al Basit LLC, the 6th Circuit seemed to hold that all an employee needs is his or her own testimony to establish an entitlement to unpaid compensation under the FLSA. At the time, I expressed concern that such a holding might lead to more jury trials in off-the-clock wage/hour cases:
This ruling is scary, and has the potential to work extortionate results on employers. If all an employee has to do to establish a jury claim in an off-the-clock case is say, “The employer’s records are wrong; I worked these approximate hours on a weekly basis,” then it will be impossible for an employer to win summary judgment in any off-the-clock case.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, May 20, 2016
WIRTW #413 (the "rock star" edition)
I gotta say, I love watch the evolution of my daughter as a performer. Case in point: last weekend’s epic Weezer vs. Green Day shows. Further case in point: Green Day’s Basket Case.
Not be outdone, check out brother Donovan’s keyboard skills and dance moves (starts at around 0:45):
Here’s the rest of what I read this week.
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Thursday, May 19, 2016
Mom cannot sue employer for discrimination against her son, court says
Brittany Tovar claimed that her employer, Essentia Health, discriminated against her when her employer-sponsored medical insurance denied her son gender reassignment services and surgery.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, May 18, 2016
I scream, you scream, we all scream … for the FLSA’s new salary test
At 3 pm this afternoon, Vice President Joe Biden, Senator Sherrod Brown, and Secretary of Labor Tom Perez will appear at Jeni’s Ice Cream in Columbus, Ohio, to announce the Department of Labor’s new overtime rule.
The rule, as expected, increases the salary level at which one qualifies as an exempt white-collar employee ($913 per week; $47,476 annually), while leaving alone (for now) the duties one also must meet to qualify. It is expected that 4.2 million white-collar workers will now qualify for overtime.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, May 17, 2016
EEOC’s final rules on employer wellness programs provides clear path for employers
Yesterday, the EEOC published its long-awaited rules that describe how the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act apply to wellness programs offered by employers that request health information from employees and their spouses. Both rules take effect July 18, 2017.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, May 16, 2016
The $15 minimum wage is an employee-relations nightmare
Last week, Cleveland’s City Council introduced legislation to raise the city’s minimum wage to $15. Mayor Frank Jackson has come out against the bill, stating that he opposes the legislation because it puts the city at a competitive business disadvantage against other cities: “I continue to support a minimum wage increase if mandated by the state or federal government and not just for the City of Cleveland. For the full economic impact this has to be a united effort throughout Ohio and the United States.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, May 13, 2016
WIRTW #412 (the “duet” edition)
Those of you who’ve been readers for any length of time know of my love of all things Old 97’s. Well, they are back in town next Wednesday at the Beachland Ballroom. Look for Norah, my wife, and me right up in front of the stage.
In promoting the show, Rhett Miller, the band’s lead singer, gave an interview to Scene Magazine. What did Rhett say was his “favorite Cleveland memory”? Singing with Norah, of course.
I had a solo gig at the Music Box, which is a great room, and there and there was a sweet little girl who got up on stage and sang “Firefly,” a duet I do. She was so brave. It’s such a rare thing. It’s so dangerous to pull a stranger up on the stage particularly when it’s a little kid but she totally nailed it.
We forgive Rhett that time has dulled his memory of the song they actually sang (it was The New Kid). But that’s more than ok. How freakin’ cool is it for Norah that a bona fide rock star’s best memory is singing with her?
Here’s the rest of what I read this week:
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Thursday, May 12, 2016
President signs the Defend Trade Secrets Act of 2016—what employers need to know
Yesterday, President Obama signed into law the Defend Trade Secrets Act of 2016. It creates a uniform, federal standard for the protection of corporate trade secrets.
What do employers need to know about this new law?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, May 11, 2016
NLRB positively botches decision over “positive workplace” policy
Do you have a “Positivity Policy” like the following in your employee handbook?
The Company expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation. Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.What could be wrong with a workplace policy that tells employees to “maintain a positive work environment”? Everyone loves, positivity, right?
Everyone, that is, except the NLRB.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, May 10, 2016
EEOC issues new guidance on leaves of absence under the ADA
What does the EEOC want you know about your treatment of employees’ leaves of absence under the ADA? A whole bunch, according to this guidance, published yesterday by the agency.
The guidance, aptly entitled Employer-Provided Leave and the Americans with Disabilities Act, addresses, according to the EEOC, “the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation,” which the agency believes “serve as systemic barriers to the employment of workers with disabilities.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, May 9, 2016
Happy blogiversary to me
Nine years ago today, I launched the Ohio Employer’s Law Blog.
During that span, millions have read 2,421 posts (OMG!).
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, May 6, 2016
WIRTW #411 (the “Green Day” edition)
I’m pretty excited for my daughter’s next School of Rock performance. The show is called “Nerds vs. Punks”, whch pits two of 1994 greatest albums against each other, Weezer’s Blue Album and Green Day’s Dookie.
Here’s a 15-second sneak peak of what you’ll see at Brother’s Lounge on the afternoons of May 14/15.
Here’s what I read this week:
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Thursday, May 5, 2016
Amended medical marijuana bill offers employers higher protections
Last month, I reported on the introduction of Ohio House Bill 523, which would legalize medical marijuana in Ohio. I suggested that the bill’s protections for employers, which go further than those of either of the two competing November ballot measures, are a good start, but would likely need some tweaks to provide employers all of the protections they need.
Yesterday, employers got some much needed help, with an amended H.B. 523 [pdf], which significantly expands the rights of employers in regard to employees legally using marijuana.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, May 4, 2016
Transgender bathrooms is a solution in search of a problem
In the blogging world, when you snooze, you lose. Yesterday, my fellow bloggers were all over the EEOC’s publication of guidance on bathroom access for transgender employees:
- Eric Meyer’s Employer Handbook Blog: Not letting transgender employees use the restroom of their gender identity is sex discrimination
- Phil Miles’s Lawffice Space: EEOC issues transgender employee fact sheet
- Robin Shea’s Employment & Labor Insider: EEOC posts fact sheets on LGBT discrimination, transgender issues
- Dan Schwartz’s Connecticut Employment Law Blog: Bathroom Access Rights Guaranteed By Title VII
- The Russ Runkel Report: EEOC & OSHA on transgender bathrooms access
Here’s the bottom line.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, May 3, 2016
Looks like the DOL just put its new salary test on the discount rack
It’s been a few weeks since we last peeked in on the DOL’s upcoming increase for teh FLSA’s salary test (Winter is coming … for the FLSA’s salary test). It’s long been expected that the DOL would increase the salary test for the administrative, professional, and executive exemptions from $23,660 per year (or $455 per week) to an expected $50,440 per year (or $970 per week). Now, however, it’s been reporting that the DOL has had a change of heart, and will step up the salary threshold to $47,000 per year (or a nice, round, $903.85 per week).
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, May 2, 2016
Maternity leave vs. “Me-ternity” Leave, and what it means for work-life balance
I read with great interest the following story in the New York Post, entitled, “I want all the perks of maternity leave — without having any kids.”
The story, written by Meghann Foye, a self-professed overworked, yet childless, woman in her mid-30s (and author of a recently published novel called “Meternity”), argues that all women deserve “me” time away from work, and that maternity leave shouldn’t be limited just to new moms.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, April 29, 2016
WIRTW #410 (the “odd jobs” edition)
What is the oddest job in America? It might be the folks who blur to the naughty bits on Discovery Channel’s Naked and Afraid. From The Seattle Times:
“This is a totally weird work environment,” said Shaun O’Steen, the 45-year-old leader of the team, which calls itself the Blur Man Group. “I mean, what job can you say, ‘Oh, my God, look at that penis,’ and not have to worry about HR?” … For O’Steen, the task is slightly complicated by one more fact: His desk is opposite that of a 27-year-old who is the only woman and, by far, the youngest member of the blurring group. She is also his wife.
No matter how weird you think your job is, I’m going to bet it’s not this weird.
Here’s what else I read this week:
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Thursday, April 28, 2016
Let’s not forget about damages when litigating our cases
When employers are sued, they do not put enough thought into damages. The typical response is, “We didn’t discriminate; we aren't liable.” But, the reality is, unless you win a case on summary judgment (sadly, an unlikely result), you need to think about what a case is potentially worth and how much a plaintiff can potentially cover. For starters, it will drive settlement discussions. Moreover, and more importantly, if a case does not settle, you will want to whittle that number down as low as possible to limit the potential exposure at (gasp) trial.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, April 27, 2016
Ohio tries again to add LGBT rights to employment discrimination law
As I’ve said more times than I can count, I think it’s repulsive that, in 2016, it is lawful under Title VII and the employment-discrimination laws of most states to discriminate because of one’s LGBT status.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, April 26, 2016
DOL publishes new employer FMLA guide
Since I recently cut a check to the IRS for the balance due on my taxes, I thought I’d take today’s space to review how the federal government spends our tax dollars. Today’s examination? The Department of Labor’s newest publication, The Employer’s Guide to the Family and Medical Leave Act [pdf].
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, April 25, 2016
Ohio introduces employee background check legislation
It’s been a busy couple of months for employers, keeping up with the employment-related legislation popping up in Columbus. First, we had the Employment Law Uniformity Act, then the Pregnancy Reasonable Accommodation Act, next the Family and Medical Leave Insurance Benefits Act, and finally the Medical Marijuana Act.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, April 22, 2016
WIRTW #409 (the “thank you” edition)
This morning I want to say a brief thank you to two organization, each of which hosted me to speak yesterday.
Yesterday morning, I presented Everything You Need to Know About Cyber Security (in 30 minutes). Thank you to local accounting firm Ciuni & Panichi for hosting me at its breakfast session, and a special thanks to Mike Klein for the invite and arranging the event.
Then, last evening I presenting Hot Employment Law Issues for 2016 to a group of HR professionals for ConnectedHR. Thank you to Mark D’Agostino, Connected’s President, for arranging the event and inviting me. It was the first time I’ve ever presented in a wine bar, and, moving forward, it should be the only venue in which I present.
Before we get to this week’s list of links, one more thank you to Walter Olson, who featured me in one of his posts at Overlawyered this week.
Here’s what I read this week.
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Thursday, April 21, 2016
Eye rolls might be passive-aggressive b.s., but they are not actionable harassment
Me: “Clean your room.”
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Wednesday, April 20, 2016
No, you can’t make offensive videos about your co-workers, even with Legos
Since we’ve gone serious the last two days, I thought we’d go with the less-serious today. Watch this video, and then let’s talk.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, April 19, 2016
Is it time for a new NLRB rule on handbook policies?
Last week, in William Beaumont Hosp. [pdf], the NLRB issued yet another decision holding that an employer’s work rules unreasonably infringed on employees’ rights to engage in protected concerted activity. Not newsworthy, right?
The 18-page takedown is a must read for any employer frustrated with its inability to draft facially neutral, reasonably based work rules.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, April 18, 2016
Are you ready for medical marijuana?
Sooner rather than later, medical marijuana will be a reality in Ohio. Currently, there are three separate efforts to enact this law: two ballot initiatives and one piece of legislation.
What does this mean for Ohio employers? Let’s start with the legislation, H.B. 523.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, April 15, 2016
WIRTW #408 (the “jobs are all jobs and sometimes they suck” edition)
Ken had a surly fan last night. But when life gives him lemons, he makes memes.
A photo posted by Rhett Miller (@rhettmiller) on
Even rock stars have bad days at the office.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, April 14, 2016
Ohio introduces paid-sick-leave legislation
There is little argument that the U.S. lags behind the rest of the civilized world on paid sick leave. As the federal government has failed to act on this issue for all but a small minority of federal-contractor employees, the state and local governments have started to pick up the slack.
Now, Ohio is considering getting in the game. H.B. 511—the Family and Medical Leave Insurance Benefits Act [pdf]—would, in essence, create state-administered short-term disability insurance for employees who need time off for an FMLA-covered reason.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, April 13, 2016
8th Circuit rejects obesity as an ADA-protected disability
In a closely watched case, the 8th Circuit Court of Appeals, in Morriss v. BNSF Railway Co. [pdf], has rejected a claim that the ADA protects “obesity” as a disability.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, April 12, 2016
What issues are on the NLRB’s radar? Be afraid.
If you want to know the legal issues that are on the NLRB’s radar, you need to look no further than NLRB General Counsel Memo 16-01 [pdf], which lists those categories of cases that “are of particular interest and would benefit from centralized consideration.” In other words, which cases must the NLRB’s regions submit to D.C. for charge-or-don’t-charge decisions?
Several areas defined as “initiatives and/or priorities” caught my attention, and should catch yours too:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, April 11, 2016
Winter is coming … for the FLSA’s salary test
In case you’ve been living in the dark for the past year, the FLSA’s salary test is due for some changes, and the changes are coming soon. The latest intel suggests that the reguations—which will increase salary-level at which employees will qualify for the administrative, executive, professional, and computer employee exemptions from $23,660 per year (or $455 per week) to an expected $50,440 per year (or $970 per week)—will publish in July with an effective date in September.
Last week, the George Mason University’s Mercatus Center published a comperehensive analysis of why these new regulations will be detriemental to employers and employees. The report (pdf here, h/t Overlawyered) is well worth your time if you are interested in a solid analysis of the intended and unintended consequences of adding an estimated five million additional workers to the rolls of the non-exempt.
I’d like to focus on one such unintended consequence—lack of workplace flexibility.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, April 8, 2016
WIRTW #407 (the “cumin” edition)
Name the two greatest characters in the history of television. Mine are Archie Bunker at number 1, and David Brent at number 1(a). While Arhcie Bunker will never again grace the world with his bon mots, thank god for Ricky Gervais, who is giving David Brent and all of his clueless uncomfortableness new life with an entire movie, the trailer for which was just released.
If you’ve never seen the original British verion of The Office, immediately go the Netflix and watch it all. It’s only seven hours (give or take) from start to finish. What are you waiting for? You’re at work, you say. Well, it is work related, right?
Here’s the rest of what I read this week.
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Thursday, April 7, 2016
Huffington Post runs my bullying story
It started with a personal email from Arianna Huffington herself:
We would love to feature your voice on HuffPost on this important issue as it would resonate with many of our readers.With that, my post about what employers and employees can learn from my son being bullied at school is now running on the Huffington Post, and I’m an official HuffPost blogger.
You can (re)read the story here: http://www.huffingtonpost.com/jon-hyman/when-schoolyard-bullies-b_b_9609884.html.
If you don’t mind doing me a solid, click on the link and share my story on your personal pages (Facebook, Twitter, etc.).
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, April 6, 2016
Ohio introduces unnecessary pregnancy legislation
Last week, the Pregnancy Reasonable Accommodation Act (S.B. 301) [pdf] was introduced in the Ohio Senate. The bill seeks to raise pregnancy to the level of a protected disability.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, April 5, 2016
No matter what the producers of #Hamilton tell you, race is never a BFOQ
True confession time. I am not a fan of Hamilton. I don’t get it. Never have, never will. I will probably go to my grave having never seen what people tell me is the greatest thing to come to Broadway in the last few decades. And I’m perfectly okay with that.
I say this as prologue to today’s thought, which discusses this ad (h/t HuffPost), in which the producers of the Broadway seek “NON-WHITE men and women, ages 20s to 30s, for Broadway and upcoming Tours!”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, April 4, 2016
An employer need not read minds about reasonable accomodations
The ADA’s interactive process is a two-way street. For an employee to present a valid ADA claim, the employee must actively participate in the reasonable-accommodation discussion. The employee cannot simply provide the employer a doctor’s excuse and then turn a deaf ear to the employer’s offers to accommodate.
Case in point? Agee v. Mercedes-Benz U.S. Int’l. (11th Cir. 3/30/16).
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, April 1, 2016
WIRTW #406 (the “April Fools” edition)
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, March 31, 2016
Do you understand your state’s wiretap law?
Here’s one you don’t see everyday. According to ESPN, the Los Angeles Lakers are peeved at one of their teammates, rookie D’Angelo Russell. So far, no big deal. That is, no big deal until you understand the cause of the rift. I’ll let ESPN take it from here.
Sources told ESPN.com that some teammates' trust in Russell is eroding after a video surfaced in the past week that shows Russell recording a private conversation between himself and teammate Nick Young. Young does not appear to realize he is being taped. The video, which is believed to have come to light last week via the Twitter account of a celebrity gossip site, shows Russell filming Young while asking questions about Young being with other women.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 30, 2016
7 tips for employers, from your friendly neighborhood plaintiff lawyer
- “With every new potential client, I ask if they received a warning before being terminated. As soon as I hear ‘yes,’ it does slow us down in the march toward litigation.”
- “Juries expect some level of progressive discipline—they think it should be required.”
- “People don’t run to attorneys because they think they’ve got a great legal case. They come to see me because they’re angry about they way they were treated, especially on their way out.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, March 29, 2016
NLRB judge shoots down employee separation agreement as overly broad
Employers prefer finality when they pay an employee severance at the end of employment. One way employers sure up this finality is by obtaining a broad release of claims and covenant not to sue from the employee. But, that is not the only way. Employers use of variety of terms in separation agreements to try to ensure that the agreement is the last they will hear from the employee. That is, unless the employee runs to the NLRB, which seems to believe that there isn’t a policy that doesn’t violate the Board’s rules on protected concerted activity.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, March 28, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, March 25, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, March 24, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 23, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, March 22, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, March 21, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, March 18, 2016
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.
You can catch her live on April 3.
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.
Here’s the rest of what I read this week:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, March 17, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 16, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, March 15, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, March 14, 2016
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.For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, March 11, 2016
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
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, March 10, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 9, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, March 8, 2016
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).
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, March 7, 2016
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?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, March 4, 2016
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:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, March 3, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 2, 2016
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:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, March 1, 2016
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?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, February 29, 2016
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?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, February 26, 2016
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.
Here’s the rest of what I read this week:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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