Federal judge takes NLRB to task for rules that protect racist and sexist workplace misconduct

Of all of the decisions the NLRB has handed down in the past eight years, those that let striking employees lob racists and sexist bombs at replacement workers crossing picket lines are the most offensive to me.

Consolidated Communications v. NLRB (D.C. Cir. 9/13/16) is one such case.

More compelling than the decision, however, is the concurring opinion written by Judge Patricia Millett, in which she calls on the NLRB to carry out its mission to protect the rights of all employees, not just those who happen to be walking a picket line. How can a picket line magically convert misconduct that is “illegal in every other corner of the workplace” into the “unpleasantries that are just part and parcel of the contentious environment and heated language that ordinarily accompany strike activity,” she asks? 

The newest threat to your cybersecurity? Your lunchroom appliances

Dinner is always a bit of cluster in my house. We are a home of two working parents, and, with music lessons and band rehearsals three nights a week, it seems that we are always scrambling for our evening meal. More often than not, we end up eating out, which is neither good for our wallets nor our waistlines.

What happens to the new FLSA salary test under President Trump?

The one employment-law question I’ve been asked most since waking up last Wednesday to the reality that The Donald will be The President (aside from, “How did this happen,” and for that I direct you to John Oliver’s excellent 30-minute soliloquy of an answer from his Sunday night HBO program—warning, language NSFW) is, “Does this mean that the new FLSA salary test won’t go into effect?”

The short answer? “No, it does not mean that.”

Employee’s misuse of medical leave grounds FMLA claim

Employers often tread too cautiously when handling employees on FMLA leave. Despite this caution, courts will to side with an employer that terminates an employee after uncovering abuses of FMLA leave.

Case in point? Sharif v. United Airlines (4th Cir. 10/31/16).

WIRTW #438 (the “White House” edition)

I heard that there was this huge meeting at the White House yesterday. 

A photo posted by Cleveland Cavaliers (@cavs) on Nov 10, 2016 at 1:14pm PST

#TheChamps #youthoughtiwastalkingabouttrump #JRputashirton

Here’s what I read this week.

How do we heal at work after this election season? [Updated]

As someone who’s been blogging as long as I have, nearly all of my life experiences run through my blogging filter. “How can translate this into a blog post about the workplace,” is a question I often ask myself. So this is the place in which I found myself yesterday. “What does a Trump presidency mean for labor and employment law?”

Federal court recognizes LGBT employment discrimination as illegal under Title VII

It’s been more than a year since the EEOC first announced that it would accept LGBT-discrimination charges as sex-discrimination charges under Title VII. Last week, the EEOC finally got a federal court to agree with its position in a LBGT-discrimination-is-sex-discrimination lawsuit.

EEOC on Wellness Programs and EEO-1s

The EEOC has posted webinar recordings of two significant new rules: Wellness and EEO-1 requirements.

We measure salaries for FLSA exemptions weekly, not annually

An article entitled, “Obama overtime-pay rule prompts changes, requires loans, as Ohio universities adapt,” which ran last week on Cleveland.com, caught my eye. The articles discusses how universities are struggling with the impending salary-test change to the FLSA’s various overtime exemptions.

The article links to a communication plan published by the University of Cincinnati [pdf], discussing how the new salary test will impact its salaried employees. This is what the university is telling its employees:

WIRTW #437 (the “Elevate HR” edition)

Elevate HR is the largest virtual HR conference in the world. And, for the second straight year, I am thrilled to be one of the more than 50 industry leaders chosen to present.

I’ll be discussing a vitally important, yet too often overlooked, issue — Cybersecurity for HR. In this session, you will learn the most important steps you can take right now to train your employees on effective cybersecurity awareness, to place your company in the best position to protect against a costly data breach.

Join me and other industry for Elevate 2016 on November 10th. Because it’s a virtual conference, you don’t even have to leave the comfort of your desk. And the best part? It’s100% free.

Register now!

Here’s what I read this week.

Employers, do not ignore obvious disability accommodations

All the way back in 2014, I wrote the following:

An employee must ask for ADA accommodation to receive it.

That is, an employee must ask for an accommodation unless the employee’s need for an accommodation is so obvious that the employer cannot reasonably turn a blind eye toward it.

Case in point? Kowitz v. Trinity Health (8th Cir. 10/17/16).

Time off from work to vote

Tuesday is Election Day (oh, thank God). As long as Election Day remains a working day, employees will show up to work late, leave work early, or take long lunches, just so that they can vote.

Ohio law requires that an employer provide all employees a reasonable amount of time off to vote on election day. According to Ohio Revised Code 3599.06:

Don’t forget the fluctuating workweek for your salaried nonexempt employees

Are you still struggling with how to handle your currently exempt employees who, one month from today, will earn less than $913 per week? If you have a salaried employee, no matter what they do on a day-to-day basis, if he or she earn less than $913 per week, beginning December 1 that employee will be non-exempt no matter what.

Let me offer a suggestion you may not yet have considered—the fluctuating workweek.

Feds publish a Halloween trick for employers

Have you seen Worker.gov? It is a how-to manual for employees to file charges with the full gauntlet of federal labor-and-employment agencies―EEOC, NLRB, OSHA, and DOL Wage-and-Hour Division.

WIRTW #436 (the "Purdy good music" edition)

Norah and Rhett

Joe Purdy has been around for awhile. That I’d never heard of him before I bought my ticket to see him play with Rhett Miller last Saturday night is my fault, not his. The fact is that I should have heard of this thoughtful, folksy singer-songwriter, given that he contributed a song to one of my all-time favorite television shows, Lost.

So with no knowledge or preconceived expectations, we settled into our front-row seats at The Kent Stage to see Joe Purdy, and we were blown away. His positive message, clever lyrics, and dry wit completely entertained us.

“An example,” you ask? Here’s Joe performing an unrecorded track about his 4th grade girlfriend, Laura Wilson. If you listen closely at 1:37, you’ll hear me drop my iPhone, followed by an embarrassed, “Dad...!” from Norah, and Joe stopping the song to chat to us, amused by the whole interaction.


Check out Joe Purdy if he comes through your town. You won’t be disappointed.

Here’s what I read this week:

The White House challenges states to reform non-compete agreements

This week, the White House announced a call to action to reform non-compete agreements [pdf]. Instead of proposing sweeping federal legislation, it is asking each state to pass non-compete reforms. This call to action comes on the heels of a joint White House/Treasury Department report [pdf] issued this past spring addressing the use, issues, and state responses to non-competition agreements.

OSHA doubles down against retaliation

OSHA has had a busy October.

First, it announced that it has delayed enforcement, until December 1, of the anti-retaliation provisions of its injury and illness tracking rule.

According to OSHA, “The anti-retaliation provisions were originally scheduled to begin Aug. 10, 2016, but were previously delayed until Nov. 10 to allow time for outreach to the regulated community.” While I hate to be appear cynical, I can’t help but think that the pending lawsuit challenging the legality of these rules has something to do with this delay.

Second, even though OSHA keeps delaying these rules, it continues its efforts to educate employers and employees about them. On October 19, OSHA published both a memorandum and example scenarios interpreting these new anti-retaliation provisions.

Just because it might be legal doesn’t make it right

The plaintiff in Tennial v. UPS [pdf], a former UPS manager, claimed that his manager placed him on a performance improvement plan, and ultimately demoted him, because of his race. In support of this claim, he relied in part on: 1) his manager’s alleged use of the word “n*****” in referencing another, nonparty UPS employee, and (2) a district president’s use of the word “boys” in reference to Tennial’s black coworkers.

Lessons from a job interview

Last week, Steven Colbert conducted a mock job interview for President Obama. During the course of the interview, he asked the President questions that referred both to his age and the national origin of his birth.


Oops.

What lessons can employers learn from these few moments of late-night frivolity?

WIRTW #435 (the "spare time" edition)

How do you spend your down time? What do you do when you’re not working? Me? I blog, and I play roadie for Norah and Donovan. If you happen to work as an animator at Pixar, you craft emotionally compelling and visually stunning short animated films. Like this one.


Borrowed Time from Borrowed Time on Vimeo.

According to one of its two creators, Lou Hamou-Lhadj (the other is Andrew Coats), their “goal was as to make something that kind of contested the notion of animation being a genre, and one for children specifically. We really wanted to make something that was a little bit more adult in the thematic choices, and show that animation could be a medium to tell any sort of story.”

I’d say they hit it out of the park. 

Here’s what I read this week.

Is social recruiting discriminatory?

Yesterday, I noted that the EEOC is examining the impact of “big data” on how employers reach employment decisions.

Looking at an issue and doing something about it, however, are two entirely different animals. I wonder what business the EEOC has looking at this issue at all. The EEOC’s mission is to eliminate discrimination from the workplace. Certainly, there is no claim that neutral data points intentionally or invidiously discriminate based on protected classes.

EEOC reiterates its enforcement priorities for the next four years

Earlier this week, the EEOC announced its updated Strategic Enforcement Plan for 2017 – 2021. So, what issues must employers have on their radar? From the EEOC’s press release:

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.

Billy Bush, harassment, and employer liability

Dan Rather, who is riding out the sunset of career interviewing musicians on Mark Cuban’s cable channel, also has been killing it lately on his Facebook page. He recently posted the following, tipping his hat to an article on The Huffington Post entitled, Dangerous Sycophants—Billy Bush in the Workplace:

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.

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.”

Atoning for employers’ biggest sins #employmentsins

Today is Yom Kippur, the Jewish Day of Atonement, the day on which we make peace with God for all of the sins we’ve committed over the past year. On Rosh Hashanah God writes each person’s name in Book of Life. Over the next 10 days, Jews seek forgiveness for wrongs done against God and other human beings. During Yom Kippur, each individual makes their personal petitions to God, and hopes for forgiveness for the upcoming year. If all goes well, when God closes the Book of Life at the end of Yom Kippur, your name remains and your soul is safe for another year.

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?

From the archives: The art of the apology

I’ve been thinking all weekend whether to write about Donald Trump’s 2005 hot mic embarrassment, and, if so, what I’d write about. After all, I’ve already recently written about plagiarism and your b.s. meter in the wake of Melania Trump’s RNC speech, victim blaming sexual harassment victims in the wake of Donald Trump’s comments about his hope for his daughter’s reaction to workplace harassment, and, perhaps most critically, the importance of discourse in setting appropriate tones and modeling appropriate conduct in the workplace and beyond.

Then I saw Mr. Trump’s non-apology, and I had my theme.

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.

NLRB takes one on the chin in appellate decision

I am no fan of the NLRB and its aggressive agenda over the past few years. And, it appears I don’t stand alone.

Check out these scathing words from the D.C. Circuit Court of Appeals in Heartland Plymouth Court MI v. NLRB [pdf], in which the appellate court ordered the NLRB to pay the employer’s $17,649 in legal fees for the Board’s bad faith litigation by continuing to pursue a case that the NLRB knew it could not win. Why? Because the NLRB’s position ran counter to the law of every single appellate court.

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

EEOC lawsuit highlights risk of dealing with prescription medications in the workplace

There is no doubt that prescription-pain-medication abuse is a rampant problem in America. Indeed, this week the State of Ohio even went so far as to limit the ability of an injured worker to receive reimbursements for pain meds from the state workers’ compensation fund.

So, what then does one make of this story from Employment Law 360, describing a recent lawsuit the EEOC filed against Georgia medical practice?

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.

WIRTW #432 (the "Hotel Norha" edition)

This what one’s happy place looks like

Jack White month comes to an end with a few clips from Norah’s most excellent School of Rock “Many Shades of Jack White” show. She was asked to do a lot in this show. Of the 19 songs in the set, she sang lead on 9 (including Hotel Yorba, in which sang and played guitar), guitar on another, and background vocals on 3 more. That’s a .684 batting percentage, which is a whole bunch for a 10 year old to carry on her shoulders. And she totally killed it (not that I’m biased).

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.

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.

The most expensive bottle of orange juice ever

Today, I bring you a first for the blog. A magic trick. Read along as the EEOC transforms a $1.69 bottle of OJ into $277,565.

I’ll let the EEOC explain it’s own magic:

Can you require flu shots for your employees?

As the calendar winds its way into autumn, and as the temperature starts to trend downward, we move into flu season. Which is why should pay special attention to this story from Employment Law 360:

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.

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”.

A video posted by Jon Hyman (@jonhyman) on Sep 17, 2016 at 6:04pm PDT

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.

Here’s what I read this week:

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.

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.

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.

Regulating social media at work is a Sisyphean task

According to Ajilon (as reported by BenefitsPro), American employees spend 140 per year (or an average of 33 minutes per day) on Facebook, Twitter, Instagram and other social networks. Aggregated across all employees, the survey estimates this personal time costs employers $192.4 billion each year.

These numbers, however, merely beg the questions — (1) should you care and (2) what can you do about it?

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.

In a lengthy decision that discusses the very concept of race, the court answered the question “no”.

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:

The NLRB is now basically creating unfair labor practices out of thin air

Image via forbes.com

Those that have been readers for awhile know of my dislike of the NLRB’s expansion of its doctrine of protected concerted activity (e.g., here and here).

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].

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.

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.

Forced retirement is an age discrimination no-no

Image credit: slate.com

The EEOC has sued a Colorado hospital for age discrimination. The key allegation? That it forced employees to resign because of their age. The lawsuit claims hospital managers made ageist comments, including that younger nurses could “dance around the older nurses” and that they preferred younger and “fresher” nurses.

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.”

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.

Here are the top ten labor and employment law posts from this past week (not written by me, and not really in any particular order):

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.

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.

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.

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.

We made the 10:30 ferry! #millerboatline #learningisfun #stonelab pic.twitter.com/OCDmrJc0D9

— LS Technology (@LRATechnology) September 1, 2016

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

The ADA and prescription meds: what you need to know

Can an employer include prescription medications in its drug screening of job applicants and employees? Here’s a good lawyer answer for you. It depends.

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.