DOL wage/hour agreement with Subway raises legitimate joint-employer concerns

The Department of Labor recently unveiled an agreement with Subway through which the fast-food giant has agreed to assist its franchisees in their wage-and-hour compliance.

According to the DOL

the agreement builds upon the division’s ongoing work to provide technical assistance and training to Subway’s franchisees. It also provides an avenue for information-sharing where we will provide data about our concluded investigations with Subway, and they will share their own data with us, generating creative problem solving and sparking new ideas to promote compliance. When circumstances warrant, the franchisor will remind franchisees of the Wage and Hour Division’s authority to investigate their establishments and to examine records. It also specifies that Subway may exercise its business judgment in dealing with a franchisee’s status within the brand, based upon any history of Fair Labor Standards Act violations.

When the Department of Labor can’t even figure out the FLSA…

According to Employment Law 360, the U.S. Department of Labor has agreed to pay $7 million to settle claims that it failed to pay overtime to thousands of its employees:

“This is the agency that goes around fining all the private employers for doing the same thing that it just ended up paying $7 million to make go away,” said the union’s attorney.…

AFGE’s collective action-type grievance had accused the DOL of violating the Fair Labor Standards Act by failing to compensate employees eligible under the statute for suffer or permit overtime. Amid the 10-year legal fight, workers who were classified as FLSA exempt were moved back to FLSA-eligible, the union said.

ABA amends model professional conduct rules to prohibit discrimination. What took it so long?

Last week, during its annual meeting, the American Bar Association amended its model rules of professional conduct to incorporate employment discrimination into attorneys’ ethical mandates.

Model Rule 8.4 now reads as follows:

(g) It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

WIRTW #425 (the “tschüss” edition)

The Hymans did not take a vacation this summer. Instead, our vacation came to us.

Three years ago we hosted a foreign exchange student from Germany. Zarah entered our house as a stranger, and 10 months later left as our German daughter. Three weeks ago she and her sister, Alexa (German daughter number two) came for a visit. Today, they leave.

“Tschüss” is the German equivalent of “bye.” It’s light and informal. And, so, today, I say “tschüss” to Zarah and Alexa, because we know we will see them again soon (and even sooner on Skype), and danke to their parents (and our good friends), Michael and Karen, for sharing them with us for a few wonderful weeks.

Being accident free is important for a truck driver, says Ohio court

I love common sense legal decisions. Hartman v. Ohio Department of Transportation is one such case. It's holding—four preventable accidents in nine months disqualifies a truck driver from further employment.

Are your DOL posters up to date?

Are your Department of Labor posters up to date? Unless you’ve updated them in the past 9 days, then the answer is likely “no”.

WIRTW #424 (the “parking lot” edition)

If you are looking for a fun Sunday afternoon of music and food truck, look no further than the Strongsville School of Rock.

On Sunday, August 21, it will hold it’s annual parking lot show, aka, Rock the Lot. It will feature a preview of the school’s upcoming fall shows, including Norah Hyman singing and strumming her way through The Many Faces of Jack White, and Donovan Hyman keyboarding, dancing, and making his singing debut (god help us) with Rock 101. It will also have the Smokin’ Rock n’ Roll Food Truck on hand. There’s no better way to spend an otherwise lazy late-summer Sunday afternoon than watching some cool kids make great music.

The event runs 4 – 6 pm on Sunday, August 21, at 16888 Pearl Rd, Strongsville, Ohio.

Details are here.

---

I’m taking a much needed long weekend. New content Wednesday.

---

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

A humane approach of layoffs

In addition to this blog, I also pen a monthly column for Workforce magazine. Today, I thought I’d share my most recent column, entitled A Humane Approach to Layoffs. Enjoy.

	Look inside >
A Humane Approach to Layoffs

I thought we were beyond blaming the victim for sexual harassment

This post will be apolitical. I’d hold the same opinion whether the speaker of the comments I intend to discuss was a D, an R, or a something-else. As it stands, however, the speaker happens to be Donald Trump. So, if you don’t want to read something negative about the Republican nominee for President, click over to something else.

Hey, look, it’s me on the Channel 5 news!

Yesterday, I had the pleasure of an interview with Megan Hickey of Cleveland’s Channel 5. We talked about OSHA’s new fines that took effect yesterday.

 

Employers, ignore 7th Circuit’s rejection of Title VII LGBT protections

In Hivley v. Ivy Tech Community College (7th Cir. 7/28/16) [pdf], the 7th Circuit ruled that Title VII does not prohibit sexual-orientation discrimination. In doing so, this appellate court has taken a position directly contrary to that of the EEOC, which has concluded that Title VII expressly prohibits LGBT discrimination under the rubric of gender non-conformity-as-sex-discrimination.

The entire 42-page opinion is worth your time to read. It is a thorough analysis and summary of the state of the law (pro and con) of LGBT employment discrimination. Do not, however, dismiss this Court’s dismissal of Hivley’s claim as anti-LGBT. Instead of anti-LGBT rights, consider the 7th Circuit as pro-precedent. Indeed, even though the plaintiff loses her case, the Court has a lot to say on whether the result, which the Court believes Title VII mandates, is morally justified:

WIRTW #423 (the “final frontier” edition)

The Icarus Craft (with gold record)

As you can tell from reading this weekly column, I’m a bit of a music fan. I’ve also always been fascinated by outer space. In another life (one in which I’m actually good at science) I’d like to think I was an astrophysicist instead of a lawyer.

Thus, this bit of news, c/o Jack White’s Third Man Records, is particularly cool:

On July 30th, in celebration of our 7th anniversary, Third Man Records will reveal our attempt to play the first phonographic record in space — a gold-plated 12” master of Carl Sagan’s “A Glorious Dawn” (a moving arrangement of Sagan’s sagacious words culled from his magnificent Cosmos series, previously pressed and distributed as a 7” in their first year of operation, 2009). This record marks our 3 MILLIONTH RECORD PRESSED! The vessel tasked with the mission —The ICARUS CRAFT — is a custom-built “space-proof” turntable attached to a high-altitude balloon.

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

OSHA says “negative” to post-accident testing

Buried in OSHA’s impending final rule on electronic reporting of workplace injuries and illnesses is this little nugget. OSHA believes that you violate the law if you require an employee to take a post-accident drug test. Let me repeat. According to OSHA, you violate the law if you automatically drug test any employee after an on-the-job accident.

Allow me to pause while this sinks in.

EEOC offers guidance for Youth@Work

Do you employee minors? If so, you should be aware of the wage-and-hour laws for child labor. The Department of Labor, however, isn’t the only federal agency taking a look at your under-18 employees. Recently, the EEOC launched an entire portal devoted to the issue.

The microsite, entitled Youth@Work, is the agency’s education and outreach campaign to promote equal employment opportunity for teenage workers.

For God’s sake, think before you email

I have lots of readers. Thousands upon thousands. Do you know who doesn’t read my blog, however? Former DNC Chair (and Congresswoman) Debbie Wasserman Schultz. How do I know? Because, if she does, she would have read this:

Ohio Supreme Court sides with workers’ comp fraud

Ohio has a specific statute that protects injured workers from retaliation after filing a workers’ compensation claim. O.R.C. 4123.90 states:

No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer. 

It would seem that for this statute to protect an employee, the employee’s alleged injury must be an actual workplace injury.

Not so fast.

WIRTW #422 (the “Pikachu” edition)

The story of the week? Not the RNC, but Pokémon GO!, something about which I (happily) know very little. What does the blogosphere have to say about this phenomenon?

• Pokémon GO! Catch ‘Em All—All The Workplace Issues, That Is — via Labor & Employment Law Navigator
• Pokémon Go in the Workplace: Oh Look There’s a Pikachu! — via Employment Matters Blog
• The best, or at least most fun, workplace reaction to Pokémon GO — via Steve Boese’s HR Technology
• Just In: Musings on Pokémon Legal Issues Interrupt Law Profs’ Crazy-Busy Summer Schedules — via Law.com 
• ​​The ‘Pok​emon Go’ Craze: How Should Workplaces Respond? — via SHRM

Who knows what evil lurks in the hearts of public Wi-Fi?

According to Politico, an IT company set up various fake Wi-Fi networks around the RNC with names such as “Google Starbucks”, “I vote Trump! free Internet”, and “I vote Hillary! free Internet”. The goal was to see how many people would join the unsecured networks. The answer: 1,200, with 68 percent compromising the information on their devices.

“I use public Wi-Fi all the time,” you say. “After all, wireless data is expensive. What’s the harm in using a public network?”

Watch this video, and then let’s chat about how to discuss this important security issue with your employees.

Don’t forget your b.s. meter when conducting workplace investigations

By now, you’ve likely heard about the plagiarism flap that has embroiled the GOP following Melania Trump’s Monday-night convention speech.

In case you missed it, Melania Trump (or her speechwriter) is accused of copying parts of Michelle Obama’s 2008 DNC speech for Mrs. Trump’s 2016 oration.

Decide for yourself:

Ohio appellate decision sends working moms back to the 1950s

Employee claims her supervisor advised her not to apply for an open position because, “she is a single mother with kids and if [she] had to take time off work, it would jam [us] up for getting someone to cover the scheduling.”

Employee sues for gender discrimination. She wins in a landslide, right?

Court permits use of employee’s own racist Facebook posts in race-discrimination case

I read with interest this morning’s post on Eric Meyer’s Employer Handbook Blog, entitled, Court says employee’s Facebook page on race stereotypes is fair game at trial. The post discusses a recent federal court decision which permitted an employer to impeach at trial a race-discrimination plaintiff with her own racial Facebook posts.

WIRTW #421 (the “D-Man” edition)

Happy 8th birthday (yesterday, actually) to the best son a dad could ask for. He hasn’t had the easiest 8 years, but he’s always smiling and making people laugh. And for that (and too many other reasons to list) we love him to pieces.

When COBRA and workers’ comp collide

Every now and again I get a question from a client to which I don’t know the answer, or the answer surprises me. It doesn’t happen that often, and when it does I’m man enough to admit it.

Yesterday I received just such a question. Must an employer continue the health insurance of an employee out of work with a workers’ compensation injury?

Why #BlackLivesMatter should matter to employers

Earlier this week, an African-American Nashville police officer was decommissioned for changing his Facebook profile photo to that of Black Panther National Chairman Bobby Seale and Huey Newton holding a Colt .45 and a shotgun. The photo became iconic in the 1960 for the Black Power movement. Elsewhere in Tennessee, the Memphis police department suspended two police officers for Snapchatting a picture of a white person pointing a gun at a cartoon image of a black child running through a home.

Then, Cleveland Browns running back Isaiah Crowell Instagrammed this image, with the caption, “Mood: They give polices all type of weapons and they continuously choose to kill us...#Weak.”

Paternalism vs. pregnancy discrimination

Paternalism and pregnant workers do not mix. Case in point? According to this EEOC press release, the agency has sued a North Carolina retail-furniture franchise for pregnancy discrimination.

Developing an anti-harassment culture is key to stopping workplace harassment

You’ve likely heard that former Fox News host Gretchen Carlson has filed a sexual harassment lawsuit against Roger Ailes, her former boss and the Chairman and CEO of Fox News. The lawsuit alleges that Ailes retaliated against Carlson (which included ultimately firing her) after she spurned his sexual advances. You can read the lawsuit, which details the alleged harassment, here. 

WIRTW #420 (the “live” edition)

It’s been a while since I’ve given an update on upcoming speaking gigs, and I have a few upcoming. So, without further adieu.

• On July 27, I will be delivering Hot Topics in Wage-Hour Law for 2016 for the Cleveland HR Star Conference.
• On September 27, I’ll be speaking at Meyers Roman’s next Breakfast Briefing, The Department of Labor’s Wage & Hour Rule Changes—Are you Ready?! The free event will run from 8 – 10 am at the Cleveland East DoubleTree, and 2 hours of HRCI credits are pending. Email Sara Cox for more information or to RSVP.
• Finally, on November 15, I’m giving the Keynote at Workforce Focus on Law in Chicago. The topic—The Top 5 Mistakes Employers Make.

Please stop and introduce yourself if you're at any of these events. I love meeting my readers.

Here’s what I read this week.

Will work for beer

According to Boy Genius Report, archeologists in Iraq recently discovered a 5,000-year-old Mesopotamian tablet, which the site artfully describes as a “pay stub for beer due.” If the interpretation of the tablet is to be believed, ancient Mesopotamians were paid in beer for their labor.

“That was 3000 B.C., and this is 2016 A.D.,” you’re saying to yourself. “What possible relevance does this story have to modern employers?” The answer may surprise you.

$15 minimum wage is unconstitutional, says Ohio Attorney General

The drive to push local minimum wags in Ohio municipalities to $15 an hour may have hit a significant snag—Ohio’s Constitution.

According to an advisory opinion [pdf] issued by Ohio Attorney General Mike DeWine, a municipal ordinance may not require an employer to by a to pay its employees an hourly minimum wage rate that is in excess of the statewide hourly minimum wage rate.

Employment at-will is dead

Last week, I suggested that the “FMLA is not a personnel-file eraser.”

One does not return from an FMLA leave with a clean performance slate. Instead, one returns with the same warts with which they left. And, if those warts merit discipline, or (gasp) even termination, then so be it.

In response, one commenter cautioned about being too cavalier with discipline or termination in the wake of an FMLA leave.

http://dilbert.com/strip/2015-09-08

WIRTW #419 (the “ramen” edition)

Today I bring you greatest (only?) love song ever written about ramen noodles.


Here’s what I read this week.

FMLA does not excuse poor performance

Earlier in the week, I discussed Tilley v. Kalamazoo, in which an employer took one on the chin for disciplining an employee for not doing his job while on an FMLA leave. That case, however, does not mean that the FMLA excuses prior poor job performance, or that an employer must ignore or excuse an employee’s performance deficiencies once an employee takes FMLA leave. Indeed, as Checa v. Drexel University [pdf] points out, it’s just the opposite.

Your employees are social media-ing at work, and there's not a damn thing you can do about it

A recent survey conducted by the Pew Research Center confirmed what I have long thought. Your employees are using social media a work — 77 percent of them. And I believe even that number is low.

http://www.pewinternet.org/2016/06/22/social-media-and-the-workplace/pi_2016-06-22_social-media-and-work_0-01/

FMLA leave means leave, period.

FMLA leave means leave. That is, an employee exercising rights under the FMLA to take protected time-off from work must be relieved of their job functions, and an employer cannot hold such an employee responsible for job tasks uncompleted during such a leave of absence.

The attack on the NLRB's new joint-employer standard intensifies

Last week was a good week for opponents of the NLRB’s new, and more liberal, joint-employer standard, announced last summer in Browning-Ferris Industries of Calif. 

WIRTW #418 (the #OneForTheLand edition)

I couldn’t see much at Wednesday’s Cavs victory parade. A late start + 1.3 million people + an unwillingness to wade into the masses = soaking in the atmosphere on the periphery.

Consequently, this was the best thing I saw at the parade. Cleveland proud!

A video posted by Jon Hyman (@jonhyman) on Jun 22, 2016 at 2:04pm PDT

Here’s what I read this week:

Don’t forget about confidentiality when training your employees on social media

I’m not getting Snapchat. Maybe I’ve finally found a social channel that doesn’t fit me. Or, maybe I’m just too late to the game. Or, maybe with Twitter, and LinkedIn, and Facebook, and Instagram, and this blog, I don’t have the time or attention for one more social channel.

You know who does get Snapchat? Apparently some staffers of Australia’s Labor Party, who snapped some screens of their party’s confidential campaign strategy.

EEOC pushes NLRB to find common ground on workplace harassment

It’s no secret that I’m not a fan of the NLRB’s expanded coverage of protected concerted activity. One area over which I’ve been particularly critical is the NLRB’s position on the confidentiality of workplace investigations and workplace civility policies.

Now, the EEOC has also taken up the challenge.

On LeBron James and boomerang employees

LeBron James is the world’s greatest boomerang employee. He left Cleveland for Miami in 2010, returned in 2014, and delivered The Land our promised title on June 19, 2016.

What is a boomerang employee?
 

We are the Champions!

Cleveland wakes up the this morning basketball champions of the world. While I’m not a native Clevelander, I’ve lived here long enough to understand the pain and suffering of my town. I’ve been here for the Indians in ‘95 and ‘97, the return and floundering of the Browns, the Cavs in ‘07, the Decision, the Return, and last year’s (valiant but still a) defeat. And last night I celebrated with my family and cried tears of joy as I watched the Cavs complete what most thought was not possible — not only beating the defending champs and the team who won more regular-season games than any other in history, but also doing so after being down 3-1 and having to win two on their home floor.

WIRTW #417 (the “virgin” edition)

That time your boss caught you sleeping at work and took a selfie with you.

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

EEOC on pregnancy-related limitations and restrictions at work

It’s been nearly a year since the EEOC updated its administrative guidance on pregnancy discrimination to account for the Supreme Court’s holding in Young v. UPS regarding an employer’s obligations to accommodate its pregnant workers.

In case the EEOC’s guidance is too dense for you to digest, the agency has chosen to commemorate its participation in the White House United State of Women Summit with the publication of two new pregnancy-related resources.

12 mistakes employers make in paying non-exempt workers

Given that on December 1, 4.2 million exempt workers will transition to non-exempt status, it is timely that the Richmond Times-Dispatch though to share 9 mistakes employers make in paying hourly/non-exempt workers. I’ve added numbers 10, 11, and 12.

Philip Miscimarra is mad as hell, and you should be too!

NLRB Member Philip Miscimarra is mad as hell about the Board’s current position on employee-handbook policies and protected concerted activity, and he’s not gonna to take this anymore.

6th Circuit says illegal retaliation doesn’t meet threshold for constructive discharge. Wait, what?!

Henry v. Abbott Laboratories (6/10/16) [pdf] is what I would call a curious case, and one that I plan to liberally use any time I’m defending a case in which claims both of discrimination/retaliation and constructive discharge are asserted.

WIRTW #416 (the “420”) edition

Earlier this week, Governor Kasich legalized medical marijuana in Ohio. The law takes effect in early September. Ohio becomes the 25th state to enact a comprehensive legal medical marijuana program.

The law will allow people with the following medical conditions to use marijuana: HIV/AIDS, amyotrophic lateral sclerosis (ALS), Alzheimer’s disease, cancer, chronic traumatic encephalopathy (CTE), Crohn’s disease, epilepsy or another seizure disorder, fibromyalgia, glaucoma, hepatitis C, inflammatory bowel disease, multiple sclerosis, pain that is either chronic and severe or intractable, Parkinson’s disease, post-traumatic stress disorder, sickle cell anemia, spinal cord disease or injury, Tourette’s syndrome, traumatic brain injury, and ulcerative colitis.

Importantly, employers retain the right to fire medical marijuana users if the use violates a drug-free workplace or zero tolerance policy.

For more on what this means for Ohio employers, click here.

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

D.C. Office of Human Rights publishes best practices guide for employers on transgender rights

The District of Columbia Office of Human Rights, in connection with the National LGBTQ Task Force, recently published a 19-page best practices guide for employers on transgender issues in the workplace. The document, entitled, Valuing Transgender Applicants & Employees: A Best Practices Guide for Employers [pdf], when taken together with earlier guidance from the EEOC on transgender bathroom access and broader guidance from the EEOC on LGBT discrimination continues to signal that issue is one that you can no longer ignore.

Are ban-the-box laws actually causing more racial discrimination?

I read with great interest an article on vox.com, entitled, “Ban the box” might just replace one kind of discrimination with another. The article discusses two recent studies, one by The Brookings Institution and the other by the University of Chicago, both of which concluded that ban-the-box laws have the unintended consequence of causing more discrimination against minorities, not less:

What you need to know about EEOC’s proposed national-origin-discrimination guidance

I had a post prepared in my brain about the EEOC’s recently published proposed Enforcement Guidance on National Origin Discrimination. And then Robin Shea beat me to the punch. So, instead of recreating the wheel, I am instead directing you to her always excellent Employment & Labor Insider blog, where she shares 25 quick takes (no kidding!) on the EEOC’s proposed guidance.

A dramatic retelling of an NLRB protected concerted activity decision

Last week, the NLRB decided Dalton Schools, Inc. [pdf], in which the Board unanimously determined that a private school unlawfully terminated one of its teachers for engaging in certain protected concerted activity—complaints about how the school handled its annual musical production.

In the spirit of the decision, I present a dramatic retelling of the case, in five acts.

WIRTW #415 (the “CB + TMR = 😊”) edition

That time you walked into Third Man Records before the Courtney Barnett show and ran into Courtney Barnett.

A photo posted by Jon Hyman (@jonhyman) on May 31, 2016 at 3:30pm PDT

My daughter leads a charmed life. As one friend put it, “She’s going to think she gets to meet the band at every show she goes to. When does Sir Paul come to town?”

On a serious note, it was truly special to Norah that CB took the time to speak to her on Tuesday. I hold my breath every time she meets one of her idols. Each meeting is an opportunity for her to learn (at the tender age of 10) about grace and humility in the face of fame (or otherwise), and CB certainly did not disappoint. Norah absolutely loved the concert, but meeting Courtney Barnett was the highlight of her trip (edging out spending time with dear ol’ dad).

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

You have the right to replace striking workers, right?

Labor unions and the employees they represent have the right to strike. To combat the economic pressure of that labor stoppage, employers have long held the right to permanently replace those striking employees with replacement workers. Or, at least employers had that right.

Earlier this week, in American Baptist Homes of the West [pdf], the NLRB severely restricted the rights of employers to hire permanent replacements by holding that an employer violated the National Labor Relations Act if if permanently replaces striking employees for the purpose “to punish the strikers and the Union and to avoid future strikes.”

7th Circuit surprises by siding with NLRB on arbitration agreements

It’s been two and a half years since the 5th Circuit, in D.R. Horton, rebuked the NLRB’s prohibition on mandatory arbitration clauses. Since, however, the NLRB has been undeterred, finding, in case after case, that employers’ mandatory arbitration agreements (with and without class-action waivers) violate employees’ rights to engage in protected concerted activity under section 7 of the National Labor Relations Act.

Thus, when I heard that the traditionally business friendly 7th Circuit would be taking up the same issue, I figured the NLRB would go 0 – 2 in the federal courts of appeals on this issue. Boy was my prognostication radar off.

Why aren’t you training your employees on cyber security?

A recent cyber-security survey conducted by the Ponemon Institute and Experian has some startling results for employers. According to the survey, Managing Insider Risk through Training & Culture [pdf]:

WIRTW #414 (the “happy 10th” edition)

A very happy 10th birthday to my smart, sassy, wise beyond her years, talented, and beautiful daughter, Norah. I have no idea how this happened in 10 quick years, but I am certainly enjoying the ride.

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

Beware eldercare-discrimination claims

One of the very first posts I ever wrote on this blog, almost nine years ago to the day, discussed the EEOC’s then-new Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. One of the key issues noted by the EEOC in that document, and three years later in its follow-up document, Employer Best Practices for Workers with Caregiving Responsibilities, was eldercare discrimination:

How to behave (and not behave) in a deposition

I spent yesterday in a deposition. That fact is not all that unusual for a litigator. What makes yesterday’s exercise stand out is that I was the deponent, not the attorney. I spent my day under oath, answering questions.

As the mind of a blogger works, I thought to myself, “How can I turn this experience into a blog post?” And then I realized that I already had, six years ago, in a post entitled, 10 tips for preparing for your deposition. So join me on this trip back through the archives.