Contained the guide is a document entitled, “Myths About Misclassification”, listing 12 myths the DOL believes businesses commonly hold about independent contractors.
While I’d like to believe that every post I’ve ever written is indelibly embossed on the brain of every person that’s ever read my blog, I understand that readers come and go, and not everyone reads or recalls every post. As a result, sometimes it makes sense to dive into the archives to revisit a timely (and timeless) post of yesteryear.
Even though the webinar was for the Home Builders Association of Greater Cleveland, most of the presentation is of general business interest, and of particular interest to HR folks. Cyber crime is one of, if not the, biggest threat to American businesses (see Yahoo, Target, Home Depot, the DNC…). If this issue is not squarely in the middle of your company’s radar, it should be for 2017.
Any week my favorite band—the Old 97’s—release new music is a week to be celebrated. (I know, Old 97’s music two Fridays in row. Deal with it or read something else today).
“I’m good with God. I wonder how she feels about me?”
So ends the chorus of the Old 97’s’ “Good With God,” the lead single from the band’s 11th album, Graveyard Whistling. Due February 24th, the album offers up another boozy blast of Texas twang, train-beat percussion and guitar grit from Rhett Miller and company, who recorded its 11 songs in the same border-town studio that spawned the group’s major-label debut, Too Far to Care, two decades earlier.
With their original four-piece lineup still intact, the Old 97’s welcome a new face into the fold with “Good With God,” whose titular omniscient character is played by Brandi Carlile. The two trade vocal duties throughout, with Carlile’s voice bathed in plenty of godly reverb. The result is an ominous, off-kilter duet between Miller and his maker, driven forward at highway speed by bandmates Philip Peeples, Murry Hammond, and Ken Bethea.
You can pre-order the new album, Graveyard Whistling, here (CD, digital, or four different colors of vinyl). Why wait for it’s official release on February 24? They are good musicians and better people that deserve for their music to be purchased, not streamed. And, look for the band to roll though your town in the Spring and Summer. They are a live act not to be missed.
The EEOC reports that it has sued Goodwill Industries of the East Bay Area for sexual harassment and disability discrimination, following allegations made by disabled female nightshift janitors against their supervisor. The allegations are … disturbing:
While I was watching Rudolph the Red Nosed Reindeer with my family something struck me. The elves working in Santa’s Workshop manufacturing the toys looked awfully young. Is it possible that the North Pole lacks child labor laws? Is this how Santa keeps his costs down? After all, he needs toys for more than half a billion children.
A bill is on its way to Governor Kasich’s desk for signature that would prohibit any municipality or other political subdivision from establishing a minimum wage different from Ohio’s state minimum wage.
Sub. S.B. 331 [pdf] is a reaction to efforts of the “Fight for 15” movement to create piecemeal minimum wage increases city by city. Recall that earlier this year, Ohio’s attorney general issued an advisory opinion that 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,which is fixed by Ohio’s Constitution. This bill clears up an ambiguity over this issue.
Last week, I reported on Ohio Senate Bill 199 / Sub. House Bill 48, which would have elevated “concealed handgun licensure” to a protected class under Ohio’s employment discrimination law, on par with race, color, religion, sex, military status, national origin, disability, age, and ancestry.
My Twitter feed absolutely exploded with confusion and outrage. Some of the better replies:
Christmas carols and the Old 97’s are two things that make me very happy. Do you know what makes me happier? When the Old 97’s sing a Christmas carol.
For this week’s musical share, I bring you Rhett and the boys performing “A Holly Jolly Christmas.” If this doesn’t put you in the holiday mood, nothing will.
Click here to enjoy (sadly, the Austin American-Statesman doesn’t offer an option to embed the video).
How do you get conservative lawmakers to agree to add a protected class to an employment discrimination law? Focus on protecting on gun ownership, apparently.
Believe it or not, the right to conceal carry is about to join race, sex, age, religion, national origin, and disability as a class against which employers cannot discriminate against their employees. Really. I’m not making this up. Senate Bill 199 and Sub. House Bill 48 would make it illegal for an employer to fire, refuse to hire or discriminate against someone who has a concealed-carry permit and keeps a gun within a vehicle that may be parked on the employer’s property.
’Tis the season for workplace holiday parties. It a time to reflect on the past year and celebrate all your organization has accomplished. It is also a time to avoid liability, hopefully. A lot can go wrong at a holiday party.
Donald Trump’s presidency sparks an interesting dichotomy—a Republican that rode into office on a wave of populism, including fiscal populism. Officially, the President-elect favors a higher minimum wage: “On the minimum wage, Mr. Trump has voiced support for raising it to $10 at the federal level, but believes states should set the minimum wage as appropriate for their state.”
Earlier this week I had a conference call with a client, an event which I repeat dozens of times per week. This particular client uses UberConnect as its conference call provider. I’ve never used UberConnect before, I know nothing about it, and I am certainly am not endorsing it. I am, however, endorsing its hold music. I was the first participant to dial in, and was prepared for a few moments of smooth jazz for my listening non-pleasure. Instead, I got this song, “I’m on Hold,” by Alex Cornell, one of the company’s founders, who wrote the song specifically for this purpose.
Kudos to any company that thinks outside the box and tries something different to make the mundane a little less so.
Those of you who have been reading this blog for any length of time should know that I strongly believe that it is a national embarrassment that LGBT employment discrimination remains legal. Sure, the EEOC believes that Title VII’s prohibition against sex discrimination covers LGBT discrimination. But, despite what it may think, the EEOC does not make law, it merely enforces laws made by others. And, yes, some federal courts are starting to come around to believing that Title VII covers LGBT discrimination. Yet, until either Congress amends Title VII to expressly cover LGBT discrimination, or all federal courts conclude that Title VII already covers it, employers are compliance limbo.
Stan Musial, Wade Boggs, Rod Carew, Honus Wagner, Jimmie Foxx, Joe DiMaggio. Six of the greatest hitters in the history of baseball. And all ended the careers with batting averages under .333. If you’re a baseball player, one out of three places you among the all-time greats. If you’re the Department of Labor, however, it’s not so good.
The DOL has already taken two big losses this month (first its Persuader Rule, and then its Overtime Rule), so you’ll forgive it if it’s not overly jubilant about closing November with a much needed win. Yet, a win is a win, and at this point the DOL will take what it can get from federal judges in Texas.
The guidance, which replaces the EEOC’s older 2002 guidance and covers topic such as citizenship, language issues and English-only policies, and harassment, is recommended reading for all employers, as are the EEOC’s companion Q&A and small business fact sheet.
Let me point out, however, one area of contention—the issue of “perceived” national origin discrimination.
Today is Cyber Monday, the biggest online shopping day of the holiday season. In fact, it is estimated that today will be the biggest online shopping day ever, with over $3.36 billion in sales.
And, guess what? Given that most of those doing the shopping will be spending the majority of their prime shopping hours at work, from where do you think they will be making most of their Cyber Monday purchases.
My 5th grade daughter just completed two long-term school projects—a comprehensive book report celebrating a Newbery Medal winner (she chose Shiloh), and a scientific study of a native Ohio bird (she chose the wild turkey). They were due within two days of each other, and she had several weeks to complete each. We sat down with her school planner and mapped out reasonable due dates for each piece of each project, so that she would not get slammed at the end. With her busy music schedule, this lesson in non-procrastination was vital to her completing the projects on time (which she did).
I hope she doesn’t read this post, because I don't want her ever to think procrastinators win. Nevertheless, employers who procrastinated in preparing for the new overtime rules are feeling pretty good right about now.
One law firm for which I used to work provided each staff member an annual Thanksgiving turkey as a holiday thank you to its employees. With the hindsight of two decades of employment-law experience, here’s my question—should the fair market value of that turkey been included in the employees’ regular rate of pay? Because if it was, the company would have to include its value in the calculation of employees’ overtime rates.
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?
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.
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?”
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.
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?”
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.
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.
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.
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:
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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?
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.”
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.
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?
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.
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.
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.
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.
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?
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.