Tuesday, October 18, 2016
OSHA publishes final rule on whistleblower complaints under the Affordable Care Act
As I’ve previously documented in this space, OSHA does a whole lot more than just regulate workplace safety. Its other responsibilities include enforcing the anti-retaliation whistleblower protections of a veritable alphabet soup of federal laws.
One such law is the Affordable Care Act (aka, Obamacare). And, just last week OSHA published its final rule on whistleblower complaints under the Affordable Care Act, available for download as a pdf here.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, October 17, 2016
Billy Bush, harassment, and employer liability
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Friday, October 14, 2016
WIRTW #434 (the "Fruity Tunes" edition)
In the name of equal time, I present the set from Donovan’s recent School of Rock performance. His band—Fruity Tunes—played a tight five song set, and even features Donovan taking some vocal responsibilities on Beck’s E-Pro.
While he’s still developing as a musician, there is no doubt that he loves the stage and performing. And, if the crowed leaves entertained, who cares if you miss a few notes here and there, right?
Here’s what I read this week.
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Thursday, October 13, 2016
Lawsuit highlights the risk of unpaid training time
Employment Law 360 reports that Hawaiian Airlines has been sued by a group of employees claiming that their mandatory unpaid 10-day customer service training course violated the Fair Labor Standards Act.
According to court papers, trainees learned things like federal regulatory requirements and how to use a standard airline software system. … The suit claimed the Fair Labor Standards Act and state law required trainees be paid at least minimum wage “because, among other things, attendance was mandatory, the course material was related to the trainee’s job, and attendance was during regular working hours.”
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Wednesday, October 12, 2016
Atoning for employers’ biggest sins #employmentsins
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Tuesday, October 11, 2016
Court rules employers cannot take overtime credit for paid lunches
The Fair Labor Standards Act does not require paid lunches for employees. Indeed, quite to the contrary, the FLSA provides that meal breaks (presumptively defined as breaks of more than 20 minutes during which the employee is totally relieved of his or her work duties) can be unpaid.
What happens, however, to an employee’s overtime compensation if the employer pays an employee for non-working lunches? Is the employer entitled to use the extra compensation for the paid lunches to offset other overtime compensation?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, October 10, 2016
From the archives: The art of the apology
Then I saw Mr. Trump’s non-apology, and I had my theme.
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Friday, October 7, 2016
WIRTW #433 (the "I feel love" edition)
Today, I thought I’d share some recent love the blog has received around the interweb.
First up, Feedspot’s Top 100 Legal Blogs, which ranks yours truly at number 34 overall, and the top labor and employment law blog.
Next, Northeast Ohio’s ERC, which included me on its recent list of the Best HR Blogs (as the lone legal blog).
Third, Justipedia, which lists me as one of the Top Employment/Labor Attorneys to Follow on Twitter.
Finally, The Expert Institute nominated the blog as one of 2016’s best litigation blogs. If you’re inclined, you can even jump over and vote to move me up the list.
Thank you to each of these resources for including me. Each contains a plethora of blogs and tweeters that are worth checking out. I know I found some new resources to follow, and I’m confident you will too.
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Thursday, October 6, 2016
NLRB takes one on the chin in appellate decision
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Wednesday, October 5, 2016
Don’t ignore unpaid leaves as a reasonable accommodation
Two recent EEOC lawsuits (here and here) illustrate the risk employers continue to take when they deny unpaid leaves of absence to employees as a reasonable accommodation under the ADA.
http://dilbert.com/strip/2015-10-21 |
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Tuesday, October 4, 2016
EEOC lawsuit highlights risk of dealing with prescription medications in the workplace
So, what then does one make of this story from Employment Law 360, describing a recent lawsuit the EEOC filed against Georgia medical practice?
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Monday, October 3, 2016
Why the DOL’s federal contractor paid sick leave rules matter for all employers
Last week, the Department of Labor rolled out its final regulations mandating paid sick leave for the employees of federal contractors. According to the DOL, Once fully implemented, more than one million employees of federal contractors will be covered. At the highest of levels, the rule mandates that covered workers earn up to 56 hours (7 work days) of paid sick leave annually. Notably, the rule does not apply retroactively, and only applies to new federal contracts and replacements for expiring contracts on or after January 1, 2017.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, September 30, 2016
WIRTW #432 (the "Hotel Norha" edition)
This what one’s happy place looks like |
Two things stand out for me. First, I love when Norah gets to sing and play guitar simultaneously, which she did on one of my all time favorites, Hotel Yorba. Secondly, I love how Norah is no longer just on stage singing or playing some songs, but is transitioning into an entertainer, cognizant of the fact she is, in fact, putting on a show for an audience.
Judge for yourself. Here’s the best 14:03 from the shows.
Here’s what I read this week.
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Thursday, September 29, 2016
Will OSHA’s new whistleblower rules invalidate your settlement agreement?
When an employer presents an agreement to an employee ancillary to the separation of that employee’s employment, or settles a claim asserted by an employee, part of the bargain for which the employer is paying is finality. Yet, over the past couple of years, the federal government has made this finality harder and harder to achieve.
Confidentiality, non-disparagement, and other “gag” provisions in employee separation and settlement agreements have been under attack by various federal agencies, including the EEOC and the NLRB. Now, OSHA also has joined the fray.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, September 28, 2016
The most expensive bottle of orange juice ever
I’ll let the EEOC explain it’s own magic:
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Tuesday, September 27, 2016
Can you require flu shots for your employees?
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Monday, September 26, 2016
Are you sure you want to take that case to trial?
Consider Locigno v. 425 West Bagley, Inc. [pdf], decided last week by an Ohio appellate court.
This case is remarkable. Because of some odd communications between a juror and the court, the concurring opinion gives a unique look behind the curtain of jury deliberations. And it isn’t pretty.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, September 23, 2016
WIRTW #431 (the “stop breaking down” edition)
Last Saturday was Jack White show #1 for Norah and her School of Rock friends. One of my personal highlights was Norah singing The White Stripes’s cover of the Robert Johnson 1937 blues classic, “Stop Breaking Down”.
Show # 2 is this Sunday, September 25, at 12 pm, Brothers Lounge,11609 Detroit Ave., Cleveland. As always, stop and say hi, and I’ll buy you a beer.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, September 22, 2016
Yes, these are my readers
It’s rare that I write a same-day follow-up post, but an email I received from a reader in response to this morning’s post merits special attention.
The email read as follows:
Your article on why your son hates Donald Trump is way off base. I think it exemplifies why you have not adequately informed your son on the facts such as she could always come here on a tourist visa….. Educate your son and let him know that part of the reason for Trump’s stance on ILLEGAL immigration is because one day an Illegal Immigrant just might take the job he wants to earn more money.This was my response:
He’s 8, and while brilliant (the apple not falling far from the tree), I think the nuances of immigration policy might be a bit much for him. Besides, we start our policy discussions in the Hyman house with nuclear proliferation. Immigration policy isn’t until he turns 10.I’m going to assume I now have one less reader, and that’s perfectly fine by me.
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Discourse matters
My eight-year-old son hates Donald Trump. I know hate is a strong word. I rarely use it (except when describing the most evil of all condiments, mustard. I hate mustard).
But, Donovan hates Donald Trump. All you have to do is mention his name, and he will tell you how much he hates the Donald, and how he has no room in his life for anyone who thinks any differently.
Over the months of listening to our son tell us of his hatred for Trump we never thought to ask why. Until we did.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, September 21, 2016
When is December 1 not December 1? When two lawsuits challenge the new overtime rules.
On December 1, the Department of Labor’s new salary test for exempt employees is set to take effect, raising the salary level to qualify for certain white collar overtime exemptions from $455 per week to $913 per week.
That is, it is set to take effect if the two lawsuits filed yesterday don’t delay or outright stop the rules from taking effect.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, September 20, 2016
Regulating social media at work is a Sisyphean task
These numbers, however, merely beg the questions — (1) should you care and (2) what can you do about it?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, September 19, 2016
11th circuit decision on dreadlocks and race asks big questions on the meaning of discrimination
In EEOC v. Catastrophe Management Solutions [pdf], the EEOC asked the 11th Circuit to determine whether banning an African-American employee from wearing dreadlocks constitutes race discrimination.
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Friday, September 16, 2016
WIRTW #430 (the “third man” edition)
I have officially dubbed September Jack White Month in the Hyman house. I’ve never hid my love of all things Jack White. So, when the same month brings us the release of Jack White – Acoustic Recordings 1998-2016, a live Tonight Show performance, and my daughter performing in an all Jack White show (9/17 @ 2:30 and 9/25 @ noon, Brothers Lounge, mention this blog and your beers are on me) what's not to love?
Here’s what I read this week:
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Thursday, September 15, 2016
The NLRB is now basically creating unfair labor practices out of thin air
Image via forbes.com |
The latest on the NLRB’s hit list: employee mis-classifications. The NLRB has concluded that an employer has committed an unfair labor practice and violated an employee’s section 7 rights by (mis)classifying its employees as independent contractors. Or so was the Board’s conclusion in its recently published General Counsel Advice Memorandum [pdf].
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, September 14, 2016
When it’s better to be lucky than good
Employers, sometimes it is better to be lucky than to be good. Case in point? Graves v. Dayton Gastroenterology [pdf], decided yesterday by the 6th Circuit.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, September 13, 2016
Our employment discrimination laws are not a pretense
Last week, the 6th Circuit decided Richardson v. Wal-Mart Stores [pdf], a fairly run of the mill age discrimination lawsuit. The court decided that Richardson had failed to establish that Wal-Mart’s reason for firing her—a two-year history of disciplinary warnings—was pretext for age discrimination.
What caught my interest was not the decision itself, but instead the following statement made by the plaintiff’s attorney to Employment Law 360 about the decision:
The unfortunate reality is that anti-employment discrimination laws have largely become a pretense in the U.S. These laws remain on the books; but many courts rarely enforce them.
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Monday, September 12, 2016
Forced retirement is an age discrimination no-no
Image credit: slate.com |
According to Phoenix District EEOC Regional Attorney Mary Jo O’Neill, “Research shows that pervasive stereotypes about older workers still persist—for example, there are widespread stereotypes that older workers are less motivated, flexible, or trusting and that a younger workforce is preferable. These stereotypes are flatly untrue and must be recognized for what they are—prejudice and false assumptions.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, September 9, 2016
WIRTW #429 (the "top 10" edition)
Blame it on the Labor Day holiday and the resulting short work week, but the labor and employment news has been a bit scarce this week. So, instead of my usual categorical breakdown of the week’s best posts, I am listing them as a (sort of) top 10.
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Thursday, September 8, 2016
Free Speech, Social Media, and Your Job
One of the biggest misconceptions that employees hold is that the First Amendment grants them free speech rights in a private workplace. Quite to the contrary, the First Amendment right to free speech grants private-sector employees zero constitutional rights or protections.
Today, I bring you a guest post by Ellen Gipko of HubShout, which takes a deep look at this important issue, with a special focus on online speech and social media.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, September 7, 2016
Fox Settles Sexual Harassment Suit with Gretchen Carlson
What do you get when you add a high profile sexual harassment suit, a highly compensated employee, and a well known target?
$20 million.
That is the number that Gretchen Carlson is receiving in settlement of her sexual harassment lawsuit against her former boss, deposed Fox News chief Roger Ailes.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, September 6, 2016
Associational disability discrimination claims are rare, yet dangerous
I have been blessed with employers that are sympathetic to the fact that my son was born with some life-long medical issues. I’ve never had an issue taking time for a doctor’s appointment, or an unexpected illness, or the three weeks he spent inpatient at the Cleveland Clinic five (very) long years ago.
Some employees aren’t so lucky.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, September 2, 2016
WIRTW #428 (the “science is fun” edition)
I never thought I’d be the parent of private school kids. I am a proud survivor of the School District of Philadelphia, and always assumed that my kids would also attend public school. Then we found Lake Ridge Academy. Without sounding like too much of an advertisement for the school, it was the best decision and investment we made for our family.
Case in point — the fifth grade starts every school year with an overnight science trip to Stone Lab, an Ohio State teaching and research lab on Lake Erie. They study marine life, fish (and dissect fish), otherwise explore nature, and bond. Norah reports that she’s been looking forward to the experience since, as a kindergartener five years ago, she saw the fifth graders leaving with their overnight bags. By the looks of things, she’s not disappointed with the experience.
— LS Technology (@LRATechnology) September 1, 2016
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Thursday, September 1, 2016
The ADA and prescription meds: what you need to know
Last week, the EEOC announced that it had sued an Arizona car dealership for disability discrimination after it rescinded a job offer when a pre-employment drug test revealed a prescription drug used to treat a disability.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, August 31, 2016
Did the NLRB do more harm than good by permitting teaching and research assistants to organize?
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Tuesday, August 30, 2016
What employers can learn from EEOC's new Enforcement Guidance on Retaliation
Yesterday, the EEOC published its final Enforcement Guidance on Retaliation and Related Issues. It’s the agency’s first formal guidance on this issue since 1998, and was long overdue. After all, according to EEOC Chair Jenny R. Yang, “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.” She adds, “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, August 29, 2016
An anniversary love story
Thirteen years ago today I married my best friend. I’m happy to report that the thunderstorms that rocked Cleveland on August 29, 2003, were not of the foreshadowing kind. It hasn’t been perfect. No marriage is. But every day is better because I get to experience it holding Colleen’s hand. And that makes us very, very lucky.
So, I thought I’d re-run a post from four years ago today. Enjoy.
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Friday, August 26, 2016
WIRTW #427 (the “treat me like your mother” edition)
Someday I am going to convert this legal blog into a full-time dad/music blog. Until then, you get my semi-regular kids/musical posts. Like today’s.
Here’s what I read this week:
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Thursday, August 25, 2016
OSHA's new Whistleblower Investigations Manual creates a huge burden for employers
Image via Lifehack.org http://goo.gl/sn/VO1H |
For most of those OSHA-enforced anti-retaliation statutes, OSHA has made employers’ anti-retaliation compliance a whole lot more difficult.
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Wednesday, August 24, 2016
A wage/hour primer for employers with tipped employees
Employment Law 360 is reporting that a waitress is suing Walt Disney World for improperly taking a “tip credit” and paying her less than the minimum wage even though she spent significant time performing non-tipped work.
That story got me thinking that in the nine-plus years of this blog, I’ve never discussed how the FLSA impacts tipped employees. If you employ tipped workers, today is your lucky day.
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Tuesday, August 23, 2016
Did the 7th Circuit finally kill McDonnell Douglas?
If you are an employment lawyer, the words “McDonnell Douglas” will bring a sentimental tear to your eye.
For the unfamiliar, the McDonnell Douglas is an evidentiary framework used in discrimination cases, which lack direct evidence of discrimination, to determine whether an employee’s claim should survive summary judgment and proceed to trial. It first asks whether the plaintiff can establish a prima facie case of discrimination—(i) s/he belongs to a protected class; (ii) s/he was qualified for the position; (iii) though qualified, s/he suffered some adverse action; and (iv) the employer treated similarly situated people outside of his/her protected class differently. If the plaintiff satisfies this minimal showing, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse action. Once the employer makes this articulation, the burden shifts again, back to the plaintiff to show that the employer’s reason is a pretext for discrimination.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, August 22, 2016
Federal court's rejection of LGBT discrimination claim on religious grounds has scary implications
Last week, a Michigan federal judge rejected the EEOC’s claim that Title VII covers transgender status or gender identity as protected classes.
In EEOC v. R.G. & G.R. Harris Funeral Homes (E.D. Mich. 8/18/16) [pdf], the agency pursued a sex-discrimination claim on behalf of the Funeral Home’s former funeral director, Stephens, who is transgender and transitioning from male to female. The EEOC claimed that the Funeral Home “fired Stephens because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to [the Funeral Home’s] sex- or gender-based preferences, expectations, or stereotypes.”
The court rejected that claim on several grounds, including the Funeral Homes’s religious beliefs as protected by the Religious Freedom Restoration Act. This basis for the holding greatly troubles me.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, August 19, 2016
WIRTW #426 (the “back to school” edition)
Here’s what I read this week:
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Thursday, August 18, 2016
Hard to believe that overt pregnancy discrimination still exists … yet it does
Pregnancy discrimination has been unlawful under federal law since 1978. You’d think by now employers would have learned their lesson—that women should not have to choose between being pregnant and being employed. Yet, this recent story from the Washington Business Journal suggests otherwise.
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Wednesday, August 17, 2016
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.
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, August 16, 2016
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.
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Monday, August 15, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, August 12, 2016
WIRTW #425 (the “tschĂĽss” 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.
“TschĂĽss” is the German equivalent of “bye.” It’s light and informal. And, so, today, I say “tschĂĽss” 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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, August 11, 2016
Being accident free is important for a truck driver, says Ohio court
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Wednesday, August 10, 2016
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”.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, August 5, 2016
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.
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, August 4, 2016
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 |
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, August 3, 2016
I thought we were beyond blaming the victim for sexual harassment
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, August 2, 2016
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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