A deep dive on social media, employee privacy, and the workplace

When history closes its book on 21st century America, Charlottesville may go down as one of its most significant chapters. If justice has any place in our world, it will prove to be a turning point on race relations in our nation. Or at least that is my hope. In the wake of this tragedy, journalists have spilled, and will continue to spill, a lot of ink.

One of the favorite articles I read in the past week was, Can an employee be fired for activities outside the workplace?, by Kathryn Moody at HRDive.com (and not just because the article is an interview with me; thanks to Kathryn for the interview). 

WIRTW #472 (the “back to school” edition)

Happy back to school @lakeridgeacademy for Norah (6th) and Donovan (3rd).

A post shared by Jon Hyman (@jonhyman) on Aug 16, 2017 at 8:26am PDT

Here’s what I read this week:

The meaning of life (in eight words)

A few months back, while riding in the car (we do a lot of riding in the car, mostly to and from music lessons, rehearsals, and gigs), I fielded a question from the back seat. I don’t recall the context of the conversation, or the genesis of the question that followed.

Norah asked, “What’s the meaning of life?”

Pretty deep for a then 10-year-old.

I paused, thought for a second (or three), and answered.

How much wasted work-time is too much?

According to a recent survey conducted by OfficeTeam, on average, employees spend 8 hours per workweek on non-work activities.

What does this non-work time look like?

Does a LinkedIn request violate a non-solicitation agreement?

In Bankers Life and Casualty Company v. American Senior Benefits (Ill. Ct. App. 8/7/17), Bankers Life sued a former sales manager, Gregory Gelineau, for violating the following non-solicitation agreement after he jumped ship to American Senior Benefits, a competitor:

During the term of this Contract and for 24 months thereafter, within the territory regularly serviced by the Manager’s branch sales office, the Manager shall not, personally or through the efforts of others, induce or attempt to induce: 

(a) any agent, branch sales manager, field vice president, employee, consultant, or other similar representative of the Company to curtail, resign, or sever a relationship with the company; [or]

(b) any agent, branch sales manager, field vice president or employee of the Company to contract with or sell insurance business with any company not affiliated with the company. 

When you discover that you employ a Nazi

In the wake of Friday and Saturday’s horrific, evil events in Charlottesville, the twitter account YesYoureRacist posted many riot photos and identified many of the rioters. And, as a result, some have lost their jobs.

UPDATE: Cole White, the first person I exposed, no longer has a job 💁‍♂️ #GoodNightColeWhite #ExposeTheAltRight #Charlottesville pic.twitter.com/sqxSXboKw6

— Yes, You're Racist (@YesYoureRacist) August 13, 2017

Question: Does one participating in a Nazi rally enjoy any job protections from said participation?

WIRTW #471 (the “free press … sort of” edition)

Hey look, it’s me, in Crain’s Cleveland Business, discussing the employee handbooks:

Here’s what I read this week:

Apparently the labor rights of strikers trump the non-harassment rights of employees

There exists only one workplace environment in which a white employee can keep his job after yelling the following at a group of African-American employees.

• “Hey, did you bring enough KFC for everyone?” 
• “Go back to Africa, you bunch of f***ing losers.”
• “Hey anybody smell that? I smell fried chicken and watermelon.”

A gold star for you if you answered a picket line, when the comments are made by striking workers and are directed at a group of replacements crossing said picket line. Or at least this is the majority finding of the 8th Circuit Court of Appeals in Cooper Tire & Rubber Co. v. NLRB [pdf].

Diversity is not an ideology

By now, you’ve likely heard about the male Google employee (James Damore) who circulated within the company a 10-page memo entitled, “Google’s Ideological Echo Chamber.” In this memo, he critiqued Google’s efforts at maintaining gender diversity within the ranks of its employees, arguing that women are underrepresented in tech not because of workplaces biases and discrimination, but because of inherent psychological differences between the sexes.

Avoid “FLSA roshambo” to win off-the-clock overtime claims

Defending claims for off-the-clock work is one of the most difficult tasks employers face under the Fair Labor Standards Act. An employee (or worse, group of employees) says, “I (we) worked, without compensation, before our shift, after our shift, or during our lunch; pay me (us).” Often, these employees have their own personal, detailed logs supporting their claims. And the employer has bupkis. It then must prove a negative (“You weren’t really working when you say you were”), which places the employer in a difficult and often unwinnable position. It’s a wage-and-hour game of rock-paper-scissors, where paper always beats air.

When we last examined Allen v. City of Chicago—a case in which a class of Chicago police officers claimed their employer owed them unpaid overtime for their time spent reading emails off-duty on their smartphones—an Illinois federal court had dismissed the claims, holding that most of the emails were incidental and non-essential to the officers’ work, and, regardless, the employer lacked specific knowledge of non-compensated off-duty work.

Last week—in what is believed to be the first, and only, federal appellate court decision on whether an employer owes non-exempt employees overtime for time spent off-duty reading emails on a smartphone—the 7th Circuit affirmed [pdf].

Listen to me on the Talent10x podcast discuss the current state of LGBTQ discrimination

I have enjoyed a long and fruitful relationship with Workforce Magazine. I’ve been blogging at workforce.com for the past five-plus years. I write a monthly column for the magzine. And, I serve on its editorial advisory board. Now, you can also add “podcaster” to my Workforce CV.

WIRTW #470 (the “lot was rocked" edition)

’Nuff said.

Here’s what I read this week:

Would you let your employer microchip you?

Our family dog, Loula, is microchipped. Our vet offered it to us as a service when Loula first joined our family. It provides some peace of mind in the sad event that Loula goes missing and ends up in a shelter or vet office. They would be able to read the rice-grain RFID chip embedded in her leg, discover that she belonged to us, and return her.

Loula, however, is a dog, she’s not an employee. Which is why I’m troubled that a Wisconsin employer has decided to offer microchip implants as a “service” to its employees.

Is joint employment the issue that unites our divided government?

I cannot recall a time when our government has been more divided across ideological and party lines. (I don’t count the early 1860s, because that’s not a time a can remember.) Thankfully, an issue has come along to build a peace bridge over the streets and through the halls of Washington D.C.

This issue—joint employment, via the Save Local Business Act [pdf], which clarifies that two or more employers must have “actual, direct, and immediate” control over employees to be considered joint employers.

NBC reignites privacy debate by requiring social-media passwords of job applicants

“Those who cannot remember the past are condemned to repeat it.”  (George Santayana)

It’s been eight long years since Bozeman, Montana, set the internet on fire by requiring that job applicants for municipal positions turn over passwords to their personal social media accounts as part of the application process. In the wake of that story, states rushed to introduce legislation prohibiting this practice; many succeeded. And, the story more or less died.

Thank you, NBC, for reigniting it.

Justice Department takes a stand in favor of LGBTQ discrimination

LGBTQ prohibitions continue to make headway in the courts. While Congress has remained silent on the issue, more and more state and federal courts hold that the law’s existing prohibitions against sex discrimination implicitly cover sexual orientation and other forms of LGBTQ discrimination.

The latest appellate court to take up this issue in the 2nd Circuit, in Zarda v. Altitude Express. Just last week, the Department of Justice filed its amicus brief [pdf] in this case. Yet, in that brief, the DOJ argued that Title VII’s prohibition against sexual stereotyping as sex discrimination does not include LGBTQ discrimination. This position advanced by the DOJ is contrary to that already espoused by the 7th Circuit, many district courts, and the EEOC.

WIRTW #469 (the “rock the lot” edition)

Do you like beautiful Ohio summer sunshine, delicious food-truck cuisine, and sweet rock ‘n’ roll music?

If you answer “who doesn’t,” “yum,” and “bring it,” then you need to be at 16888 Pearl Road this Sunday from 1 – 3(ish) pm. That is when School of Rock Strongsville will hold its annual “Rock the Lot” show, during which Norah (punk) and Donovan (Beatles) will play some of their aforementioned sweet music.

Here’s what I read this week:

Treat harassment by non-employees no differently than harassment by employees

Consider the following lawsuit the EEOC filed against a California senior-care provider:

The civil rights agency found that Rashon Sturdivant, an experienced care provider, faced daily harassment, including racially offensive remarks about “brown sugar” and “black butts,” requests to perform sexual acts, and lewd comments about her body. The client also masturbated in front of her and groped her when she performed routine tasks like helping him sit up in bed or cleaning him. Although Sturdivant and other care providers informed R. MacArthur of his conduct, the EEOC charges that the employer failed to act on these complaints and also retaliated against Sturdivant by refusing to reassign her to another client.

The 14th nominee for the “worst employer of 2017” is … the horny head of HR

The 14th nominee for the worst employer of 2017, on which you'll be be voting at year's end, is perhaps the worst HR exec ever. If she's not the worst, she's at least the most libidinous.

From the New York Post:

OSHA, what say you about Michael Phelps vs. Shark?

This week is Shark Week on the Discovery Channel. And the marquee event of this year's Shark Week was Olympic swimmer Michael Phelps "racing" a great white shark. I say "racing" because Phelps did not race an actual shark. Instead, he swam against a CGI shark based on a previously recorded shark. To create the CGI, the show had to record a shark swimming in a straight line for a pre-determined distance. And, since great white sharks are not known for their trainability, the job to lure the straight-line swim fell to this guy.

Don't do this at home. #SharkWeek pic.twitter.com/hgOF0905aq

— Shark Week (@SharkWeek) July 24, 2017

Court rules that religious accommodation request is not protected activity for retaliation claim

A Minnesota federal court has ruled that an employee’s request for a religious accommodation did not qualify as protected activity to support the employee’s retaliation claim. EEOC v. North Memorial Health Care (D. Minn. 7/6/17) involves a hospital that withdrew a conditional job offer to a nurse after she disclosed that she was a Seventh Day Adventist and could not work Friday nights because of her religion.

WIRTW #468 (the “big in Japan” edition)

True story. While trekking between San Francisco’s Coit Tower and Lombard Street, we passed a group of Japanese tourists exiting their bus. One of girls, wearing a striped shirt sort of similar to Norah’s striped dress, asked if she could take a selfie with Norah. A little Puzzled and very curious, my wife asked, “Is it because you’re both wearing stripes?” “No,” she replied, “It’s because she’s so pretty.”

Somewhere in Japan, Norah has a fan club of a half-dozen girls, all with Norah selfies on their phones.

While I’m on the subject of Miss Norah, she has some pretty cool gigs coming up over the next two weeks.

• On August 3, her band, the Major Minors, plays The Grog Shop, opening for the national School of Rock AllStars. They hit at 7 pm, and tickets are only $10, available here.
• On August 5, the Major Minors again invade Whiskey Island, with music from 2 – 6 pm, and this show is free.
• Finally, on July 30, SoR Stronsgville holds its annual Parking Lot Show, previewing its summer shows, to include Donovan’s Beatles show and Norah’s punk show. Free music and not-free food trucks start at 1 pm.

Here’s what I read this week:

This is what the interactive process is supposed to look like

Last week, Donovan turned 9. Since we were in California during his birthday, we’ve had a bit of a delayed celebration back home. Since D-man has Celiac Disease and cannot eat anything with any gluten, he wanted an ice cream birthday cake. For him, however, ice cream can be tricky. Even if the ice cream itself contains zero gluten in its ingredients, it can still make him ill if it becomes cross-contaminated.

The (high) times they are a changin’: medical marijuana and disability discrimination

In what is believed to be the first decision of its kind, the Massachusetts Supreme Judicial Court has allowed an employee to pursue a disability discrimination claim based on the use of medical marijuana.

A reminder that any employee can sue you at any time

Another obvious lesson

Today’s lesson may seem obvious, but it is one worth repeating: any employee, no matter the on-the-job misconduct, can sue you. Filing a lawsuit is one thing, succeeding on that lawsuit is an entirely different animal.

Case in point: Robinson v. Klosterman Baking Co. (S.D. Ohio 7/5/17).

What I learned on my summer vacation

Saturday evening my family and I returned from our two-week California vacation. Five nights in Los Angeles, two in Paso Robles (if you ever pass through, I cannot more highly recommend Sculpterra Winery and the Paso Robles Inn), three in Palo Alto (where Donovan participated in a research study seeking a link between Noonan Syndrome and ADHD, and which resulted in both of my kids now wanting to attend Stanford … best of luck to them and me), and three in San Francisco. We had epic adventures, experienced Disney (of course), hiked and biked, enjoyed beautiful scenery, reunited with family and friends, and walked … a lot (72 miles to be precise).

We also learned one valuable HR lesson.

WIRTW #467 (the “here we are now, entertain us” edition)

Last Saturday, Norah’s band, the Major Minors, played to a packed courtyard outside the legendary Grog Shop. And boy did the crowd have a good time. Especially this woman.

This woman was everything today. The Major Minors absolutely slayed their gig - so many happy people enjoying their music @schoolofrockcle #sorcle

A post shared by Jon Hyman (@jonhyman) on Jun 24, 2017 at 1:00pm PDT

The Major Minors return to the scene on August 3rd, where they’ll play inside the Grog Shop, opening for the School of Rock Allstars (the school’s national touring band).

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The blog is going on hiatus for two weeks. I’ll be back on July 17 after a much deserved vacation.

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Here’s what I read this week.

Ohio looks to put enforcement muscle behind workplace concealed carry law

It’s been six months since Ohio made it illegal for employers to prohibit employees (or anyone else for that matter) from storing a firearm in their vehicles on the employer’s property. This law, however, lacks any specific statutory teeth (sort of). If Ohio legislators get their way, this omission will soon change.

More on why holding lawyers liable for retaliation to a client's employee is the worst idea

Yesterday’s post discussing Arias v. Raimondo as the worst employment-law decision of 2017 was way more controversial than I imagined. To me, it’s a no-brainer. It’s dangerous for courts to hold an employer’s lawyer liable for retaliation against the employees of the lawyer’s client. It will chill an attorney’s ability to give proper advice to one’s client, because anything that remotely could result in an employee suffering an adverse action could, under the logic of Arias, give rise to a retaliation claim. Then the comments rolled in:

Is this the worst employment law decision of 2017?

I’ll be vacationing in California with my family the first two week of July. After reading the 9th Circuit’s decision in Arias v. Raimondo—holding an employer’s attorney for liable for FLSA retaliation against his client’s employee because the employee sued his client for unpaid overtime—I’m thinking of adding the 9th Circuit to my list of tourist stops in San Francisco to see if courthouse resembles a Salvador Dali painting. Because this decision is flat out bonkers.

The 13th nominee for the “worst employer of 2017” is … the racist boss

I couldn’t describe the 13th nominee for the worst employer of 2017 any better than CNN did in its story about this (alleged) peach of a boss:

WIRTW #466 (the “solo” edition)

I gotta give my girl credit. She’s got cohones (especially at the age of 11). Through a casual exam-chair conversation with her orthodontist, he learned that she plays music and she learned that he’s involved with an annual summer solstice music festival. From that, she booked herself her first ever solo gig. She spent the next day working up and running through six songs, and played to a mid-afternoon crowd outside our favorite French restaurant. And, like always, she was aces. Here a few highlights strung together medley-style.


And, if you’re local and crave the full band experience, the Major Minors play a full set from 1-3 tomorrow, during the Coventry Village Sidewalk Sale & Carnival Games Party (one of Cleveland.com’s “Top things to do in Cleveland this weekend.” They will rock the courtyard outside of the Grog Shop, 2785 Euclid Heights Blvd., Cleveland Heights (coincidentally, a mere block from my law school apartment).

Reporting harassment down is no trigger for employer action, says 6th Circuit

Employers have a legal obligation to investigate known sexual and other unlawful harassment, and exercise reasonable care to prevent and promptly correct any unlawfully harassing behavior. When in harassment “known” by an employer such that it triggers this obligation? EEOC v. AutoZone (6th Cir. 6/9/17) offers some key guidance when an employee fails to report harassment up the chain of command per her employer’s written harassment policy.

6th Circuit grants EEOC broad subpoena powers

The Witch: I’m not a witch! I’m not a witch!
Sir Bedevere: But you are dressed as one
The Witch: *They* dressed me up like this!
Crowd: We didn’t! We didn’t…
The Witch: And this isn’t my nose. It’s a false one.
Sir Bedevere: [lifts up her false nose] Well?
Peasant 1: Well, we did do the nose.
Sir Bedevere: The nose?
Peasant 1: And the hat, but she is a witch!
Crowd: Yeah! Burn her! Burn her! 

– Monty Python and the Holy Grail (1975)

How wide of a net is the EEOC entitled to cast when issuing a subpoena for documents during an investigation? According to EEOC v. United Parcel Service, decided earlier this month by the 6th Circuit, the answer is a lot wider than you’d like.

The 12th nominee for the “worst employer of 2017” is … the parental stereotyper

Last week, Derek Rotondo, a dad of two young children, filed a sex discrimination charge with the EEOC against his employer of seven years, J.P. Morgan. Why? I’ll let Derek explain, in a blog he wrote for the ACLU. 

The 11th nominee for the “worst employer of 2017” is … the pregnant pause

The EEOC has taken a judgment of $118,483 against a New jersey debt collection firm in a pregnancy discrimination case. Why? Because the firm rescinded a job offer to a female employee after it learned that she was pregnant. 

That alone, however, will not earn one an employer a nomination for “Worst Employer of 2017.” I’ll let the EEOC explain further:

WIRTW #465 (the “gimme a break” edition)

Next week, I am taking a much needed break, as I will be out of the office. I’ll see everyone back on June 19. Of course, now that I’ve committed not to blog next week, the employment-law poop will certainly hit the fan next week, in which case my blogger OCD will compel me to break my pledge, interrupt my trip, and bring you all the news that’s fit to blog. Either way.

Here’s what I read this week:

DOL pulls Obama-era guidance on joint employment and independent contractors

The past two years have been busy for the Department of Labor’s Wage and Hour Division. One can directly track a large part of its busy workload to its enlargement of who qualifies as an “employer” under the Fair Labor Standards Act. In 2015, the DOL issued guidance re-defining, and broadening the definition of, who qualifies as an “independent contractor”. And, the following year, the DOL did the same with its definition of “joint employer”.

Alex Acosta, the newly appointed Secretary of Labor, looks to roll back the clock on these interpretations.

Next up on the EEOC’s radar: age discrimination

This year, the Age Discrimination in Employment Act turns 50. Which means the law itself has been protected from age discrimination for a decade (rim shot).

To mark the law’s golden anniversary, the EEOC next week will hold a public meeting, “The ADEA @ 50 - More Relevant Than Ever.” According to the EEOC, “The meeting will explore the state of age discrimination in America today and the challenges it poses for the future.”

R-E-S-P-E-C-T (just a little bit)

I ain’t gonna do you wrong while you’re gone
Ain’t gonna do you wrong ‘cause I don’t wanna
All I’m askin’
Is for a little respect

– Aretha Franklin, “Respect”

Yesterday, my friend and fellow blogger (with whom I tend to agree most of the time), Suzanne Lucas (aka Evil HR Lady), posted an article about which I could not agree more, Why You Should Rarely Fight an Unemployment Claim.

A contrary (and common sense) appellate view on rude employees and the NLRA

It’s been six weeks since I reported on NLRB v. Pier Sixty, in which the 2nd Circuit Court of Appeals held that the National Labor Relations Act protected the profanity-laced Facebook rant of a disgruntled employee. I have hoped that Pier Sixty is an aberration. Thankfully, last week the 1st Circuit came along with a well reasoned contrarian view in a case in which the alleged employee misconduct was much less severe.

WIRTW #464 (the “school’s out…” edition)

One of the elements of my kids’ school that I like most is that the curriculum provides many opportunities for public speaking at every grade level. Each of mine had their separate chance to exhibit their comfort in front of crowd during the last week of school.

The importance of an anti-harassment culture

I came across an interesting article at the Harvard Business Review—The Omissions That Make So Many Sexual Harassment Policies Ineffective. The article starts with a simple question. “If 98% of organizations in the United States have a sexual harassment policy, why does sexual harassment continue to be such a persistent and devastating problem in the American workplace?”

When is a settlement not a settlement? FLSA

When you settle a lawsuit with an employee, you are bargaining for finality. You are paying that employee to resolve all disputes between you, whether asserted or unasserted. You want to be done with that individual forever.

Except that is not always the case.

6th Circuit joins the battle over class-action waivers

There has been much judicial and administrative ink spilled over the past few years over whether the National Labor Relations Act permits employers to require employees to give up their rights to litigate or arbitrate class or collective actions. This issue is one of the most important issues facing employers, which have  looked to class-action and collective-action waivers as an important weapon to fight to scourge of wage and hour litigation. 

Last week, in NLRB v. Alternative Entertainment [pdf], the 6th Circuit joined the battle. 

WIRTW #463 (the “so special” edition)

This weekend is a big one for Norah. Today, she graduates from 5th grade and walks across the quad to become a middle schooler. And tomorrow, she turns 11. I think she’s more excited than usual about this birthday, because 10 was not her favorite year. Let’s just say that she and preteen girl-drama have not mixed well, and some have gone out of their way to make her feel less than special. (and, yes, I realize that the drama is only going to get worse).

Which is why I legit teared up this past weekend when she sang, “Brass in Pocket” by The Pretenders.

When equal pay is not “equal” pay

The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal, and substantial equality is measured by job content, not job titles. This Act is a strict liability law, which means that intent does not matter. If a women is paid less than male for substantially similar work, then the law has been violated, regardless of the employer’s intent.

This strict liability, however, does not mean that pay disparities always equal liability. The EPA has several built-in defenses, including when the pay differential was “based on any other factor other than sex.” So, what happens if two comparable employees, one male and one female, come to you with different salary histories. Does the Equal Pay Act require that you gross up a lower earning female to match the salary of a higher paid male, or do the mere disparate prior salaries justify the pay disparity under the Equal Pay Act?

Federal court breaks new ground with transgender disability discrimination claim

The ADA expressly excludes from its coverage “transvestism, transsexualism, … [and] gender identity disorders not resulting from physical impairments….”

Thus, it should be an easy call for a court to dismiss a lawsuit in which an employee, born a male but who identifies and presents as a female, alleges disability discrimination because of her gender identity disorder.

Right?

I still despise the misnamed and overused phrase “wage theft”

Writing at Inc.com, Suzanne Lucas (aka Evil HR Lady) reports on a study published by the Economics Policy Institute, which says that employers short their employees $15 billion in wages per year. According to Suzanne, “Wage theft isn’t always the case of a corrupt boss attempting to take advantage of employees.” She is 100 percent correct. In fact, most instances of an employer not paying an employee all he or she is owed under the law results from our overly complex and anachronistic wage and hour laws, not a malicious skinflint of a boss intentionally stealing from workers.

The National Labor Relations Act protects the rights of non-employees under other statutes‽

In MEI-GSR Holdings, LLC (5/16/17) [pdf], a two-member majority of the National Labor Relations Board held that an employer violated section 8(a)(1) of the National Labor Relations Act when it banned from its property an ex-employee who had filed against it a wage/hour collective action under the Fair Labor Standards Act.

Let me pause for a second to let this sink in.

WIRTW #462 (the “those were the days” edition)

I write a lot about music (particularly for a legal blog), which means that if you are any sort of regular reader, you read a lot about music. What can I say? You write what you know. I we do a lot of music in my house. Between my two kids we have three bands, three weekly lessons, three rehearsals, and gigs, gigs, and more gigs (including three this weekend).

Much of my writing about music is about my favorite band, Old 97’s. And, I don’t apologize for it. Yes, I love their music, and their songs, and how damn good they are live. But I also love who they are, as noted by this clip from their Cleveland show last week.


Who else gets a shout-out from the stage in the middle of a concert? Norah, that’s who. I can only assume she’s learning and will pay it all back when she’s famous some day.

(Bonus, check out Nicole Atkins, who we knew very little about before last week, and she converted us all to huge fans with one 40-minute opening set).

Here’s what I read this week:

The 10th nominee for the “worst employer of 2017” is … guess who?

Let’s play a game. Close you eyes and imagine. Imagine you’re the CEO of a company. And let’s also imagine your VP of HR is investigating a former executive of the company (who happens to be close friend and confidant of yours) for illegal or unethical conduct. And imagine that you privately ask said VP of HR, on the down-low, if maybe he can give your good-guy buddy a pass and end his investigation.

Is your non-compete agreement killing a fly with a sledgehammer?

At least half of my legal practice is serving as outside labor-and-employment counsel for small to midsize businesses. And, increasingly, much of that practice is consumed with drafting post-employment covenants, sending cease-and-desist letters to employees who are in violation of said covenants, or filing lawsuits to enforce said covenants; or, conversely, advising a business whether it can hire an employee with a non-compete agreement, responding to cease-and-desist letters, or defending a lawsuit seeking to enforce said covenants.

A better take on what creates a hostile work environment

Last week, I nominated Target Corporation and MarketSource for the worst employer of 2017, because they ignored the approximately 10 incidents of vile ethnic harassment a Palestinian employee suffered during the brief two month tenure of his employment. Almost as bad was the logic of the 8th Circuit Court of Appeals, which concluded that, as matter of law, the employee failed to state a claim for ethnic harassment because the “morally repulsive” comments “were not physically threatening.”

Some courts, however, do get this issue correct. Case in point? The 2nd Circuit Court of Appeals, in Ahmed v. Astoria Bank (5/9/17) [pdf].

WannaCry? Then ignore cybersecurity

Friday, the largest cyber-attack in history hit 150 different countries. The ransomware, known as WannaCry, infects via a link in a malicious email, encrypts the local files, and spreads to other computers. It then demands a ransom of $300 in bitcoin for the unlock key. 

What can, should, and must you do, immediately, to protect your business? For starters, ensure that all computers are patched to the latest Windows update (Mac computers are unaffected). 

WIRTW #461 (the “Nörha’s School of Music” edition)

I love my kids’ school. Each year, the 5th grade math class ends with what is known as the “Million Dollar Project.” Each student is given a hypothetical million dollars to open the business of their choice. The students must research what is needed to open the chosen business and the associated costs, and then draft a budget to spend the million. Naturally, Norah chose a rock music school.

In addition to the research and the budget, each student must present their business to the class. Norah chose to present hers via a commercial, which I am proud to say she filmed, directed, and edited all on her own (with only minimal help from Dad on the ins and outs of how to actually use iMovie).

Enjoy.

Here’s what I read this week:

Critical employer law reforms move forward in Ohio House

Yesterday, Ohio House Bill 2, favorably reported out of the House Economic Development, Commerce, and Labor Committee. This is the important first legislative step to getting this bill passed and enacting necessary changes to Ohio’s employment discrimination law. HB 2 now moves onto consideration by the full House.

You can read all of the details at the Ohio Chamber’s All for Ohio Blog, including the key provisions of the legislation, and, most importantly, why the bill’s opponents shifted their stance to “neutral.” With opposition moving out of the way, I am cautiously optimistic that HB 2 will become law this legislative session. Stay tuned.

The 9th nominee for the “worst employer of 2017” is … the harassment ignorer

I was going to blog this morning about President Trump’s firing of FBI Director James Comey, and how, if you’re a CEO, and your company is investigating you for some misconduct (or even worse, potential illegal activity) related to your job, it’s bigly not good to fire the person leading the investigation, no matter the excuse you trump up.

Instead, however, today’s nominees are Target Corporation and MarketSource, (which operates mobile-phone kiosks in Target stores). Why do they make my list? Take a look at Abdel-Ghani v. Target Corp. (8th Cir. 5/5/17) [pdf].

Celebrating a decade of the Ohio Employer’s Law Blog

This is why it matters who runs the NLRB

In NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that employees covered by a collective bargaining agreement may request the presence of a union representative during an investigatory interview that the employee reasonably believes may result in disciplinary action. In the 42 years hence, the Board has vacillated on the issue of whether Weingarten rights also extend to non-union employees. For example, in 2000, in Epilepsy Foundation of Northeast Ohio [pdf], the Clinton-era Board found that employees in non-union settings have Weingarten rights to a coworker representative during investigatory interviews. More recently, however, the Bush-era Board, in IBM Corp., concluded the exact opposite, that, in light of certain policy considerations, the Board would no longer find that employees in non-union workplaces have the right to a coworker representative.

Which brings us to 2017.

WIRTW #460 (the “my favorite week of the year” edition)

This week is my favorite week of the year, because five nights from now I’ll be standing front and center at the Beachland Ballroom watching the Old 97’s. Yes, I know I’m a fanboy. And you know what? I don’t care. I’ve come to grips with it. I can’t wait to hear live for the first time most of their latest release, Graveyard Whistling, including this destined to be classic, “Jesus Loves You”.


Come see what all the fuss is about. Tickets are only $20, and, for now are still available, but will sell out before the lights dim Wednesday night. And, if you’re not in Cleveland, please support these guys by checking them out when they come through your town, this spring, summer, or beyond.

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Update: Earlier this week, the House passed the Working Families Flexibility Act. Much of the press surrounding this bill frames it as a law that will take away overtime pay from employees. Click here to read why this spin is flat out wrong (hint: an employer cannot force comp time on any employee, and an employee must agree, in writing, to accept comp time in lieu of overtime pay).

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Here’s what I read this week:

6th Circuit says you can’t spell “cat’s paw” without F-M-L-A

It’s been six year since the Supreme Court decided, in Staub v. Proctor Hosp., which validated the “cat’s paw” as a valid theory of liability in discrimination cases. The “cat’s paw” seeks to hold an employer liable for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence over the ultimate decision maker.

An open issue in Staub‘s wake is whether other employment laws also apply the cat’s paw. For example, what about the FMLA? In Marshall v. The Rawlings Co. (4/20/17), the 6th Circuit concluded that the cat’s paw does apply in FMLA retaliation cases.

10 key elements of any data security policy to safeguard your company

Yesterday, I told you that small businesses (less than 250 employees) suffered 31 percent of last year’s cyberattacks. What can you do to best protect your business (of any size) to repel an attack? Let me introduce you to the Data Security Policy, an essential component of any employee handbook now, and likely forever.

What should an effective Data Security Policy contain? Consider 1) consulting with a knowledgeable cybersecurity attorney; and 2) including these 10 components (c/o me, Travelers, and the U.S. Small Business Association):

If you think your small business isn’t at risk for cybercrime, think again

If you’ve ever spoken or though the words, “We’re too small to worry about a cyberattack,” you’d better think again.

According to a recent study, 31 percent of all cyberattacks in 2016 were directed at companies with less than 250 employees.

Do I now have your attention?