The 6th nominee for the “worst employer of 2018” is … the sadistic sergeant

Thomas Schiermeyer was already a recruit for the Seaside Park, New Jersey, Police Department, when he applied to the Police Academy for a promotion to an entry-level Officer. 

The application process he alleges in his lawsuit is one that I’ve certainly never seen before, and one to which no employee ever should be subjected.

Don’t sleep on verifying reasonable accommodations

Photo by Nathan Dumlao on Unsplash

George Hirmiz, a front-desk clerk at a Travelodge Hotel, was caught on video sleeping in the hotel lobby while a fight broke out among its guests. After the hotel fired him, he claimed disability discrimination. His disability? An alleged illness that he had contracted from long-term exposure to high levels of electromagnetic voltage at the hotel.

The 7th Circuit had little difficultly affirming the dismissal of his lawsuit:

What does it mean to have “work/life balance”?

What’s your definition of “work/life balance”?

To me, work/life balance means that I have the flexibility to tend to the needs of family when the need arises, and otherwise work when and where I am able.

• No school bus this morning? I’ll get to the office at 9 am instead of 7:15.
• Doctor’s appointment? No worries. I’ll leave the office at 3 and finish up what needs to be done tonight.
• Bad weather? It’s not productive to waste two hours in traffic. I’ll work from home.
• Early evening gig for the kids? I’ll pick them up from school.

Let’s all try to remember to have gender-neutral employment policies

Photo by NeONBRAND on Unsplash

Former New Orleans Saints cheerleader Bailey Davis has filed a complaint with the EEOC accusing her former employer of having one set of rules for its male players, and another for its female cheerleaders.

The Saints fired Davis after it claimed she violated a rule prohibiting cheerleaders from appearing in photos nude, semi-nude, or in lingerie. She had posted a photo of herself in a one-piece outfit to her private Instagram.

OSHA resources to protect healthcare workers

Photo by Natanael Melchor on Unsplash

You might think that construction workers or manufacturing employees have the highest rate of workplace injuries. To the contrary, however, it’s healthcare workers.

On average, U.S. hospitals recorded 6.8 work-related injuries and illnesses for every 100 full-time employees, nearly twice the rate for private industry as a whole. The numbers are even higher for nursing and residential care facilities.

The most typical injuries include overexertion and repetitive stress; slips, trips, and falls; contact with objects; workplace violence; and exposure to harmful substances (including needle sticks).

Thankfully, if you are healthcare employer, OSHA has myriad publications to help.

WIRTW #499 (the “boarding house” edition)

The first time I ever heard of Jack White was August 10, 2001. I read about this up and coming band playing at the Beachland Ballroom. It was two-piece, the “brother” playing guitar and singing, and the “sister” on the drums. I was intrigued enough to check them out. Memory tells me that the first song Jack and Meg played that night was “Dead Leaves and the Dirty Ground.” Setlist.fm says it was “Let’s Shake Hands.” It doesn’t matter. After one song, I was completely hooked, and by the end of their set I had found a new artist to add to my musical pantheon.

Today, Jack White released his latest album, Boarding House Reach. Like everything he does, it rocks. It’s also brilliantly bonkers. Jack White is the mad scientist of 21st century rock ‘n’ roll. Like Bowie before him, Jack does an amazing job of changing things up from project to project, and this one does not disappoint.

Give it a listen:


Here’s what I read this week:

Ohio Chamber of Commerce takes the lead on fighting addiction at work with launch of its Employer Opioid Toolkit

Nearly 50,000 Americans lost their lives to opioid-related overdoses in 2016. Compare that figure to the HIV/AIDS epidemic, which recorded 43,000 deaths during its peak in 1995, or the entire Vietnam war, which saw 58,000 U.S. soldiers die.

Needless to say, our opioid problem is a national epidemic. And, Ohio sits right on the front lines, with the 3rd highest rate of annual opioid-related deaths, trailing only West Virginia and New Hampshire.

My state, however, is not taking this problem sitting down. Last week, the Ohio Chamber of Commerce launched its Employer Opioid Toolkit.

How can you transition older workers if you can’t force them to retire?

A Michigan oral surgery practice has agreed to pay $47,000 to settle an age discrimination lawsuit filed by the EEOC. The agency alleged that it violated the ADEA by maintaining a policy that required employees to retire at at 65. The lawsuit stemmed from the firing of an employee four days after her 65th birthday.

According to Kenneth Bird, regional attorney for the EEOC’s Indianapolis District Office, “December 2017 marked the 50th anniversary of the ADEA, Five decades later, the EEOC remains committed to vigorously enforcing that all-important law. Private employers need to understand that mandatory retirement policies run afoul of the ADEA and will be met with challenge.”

He’s absolutely correct.

I’m lovin’ it: McDonald’s settles joint employer case with NLRB

It has been nearly four years since the NLRB filed complaints against McDonald’s, seeking to hold it liable as a joint employer for the unfair labor practices of its franchisees. I have suggested that “if franchisors are equal under the National Labor Relations Act with their franchisees, then we will see the end of staffing agencies and franchises as a viable business model.”

In the interim, the NLRB has flip-flipped on its joint employment standard several times, and this very important area of the law has been in flux.

Now comes word that the NLRB and McDonald’s have reached an 11th hour settlement.

The 5th nominee for the “worst employer of 2018” is … the pension preventer

ERISA section 510 provides:

It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan … or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.

The Supreme Court has long interpreted this section as “protect[ing] plan participants from termination motivated by an employer’s desire to prevent a pension from vesting.” As the 6th Circuit noted, “[T]he prohibitions were aimed primarily at preventing unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.”

Late Friday, Attorney General Jeff Sessions fired former FBI Deputy Director Andrew McCabe late Friday. McCabe was (almost) a 21-year veteran of the Bureau, and was to have retired just two days later. The March 16 firing, however, prevented McCabe both from voluntarily leaving the FBI and collecting his federal pension.

WIRTW #498 (the “blarney” edition)

Photo by Khara Woods on Unsplash

Tomorrow is St. Patrick’s Day. Have you ever thought about what the Patron Saint of Ireland can teach us about employment-law compliance? I did, seven years ago.

Click here for 10 compliance challenges to chase out of your workplace.

Here’s what I read this week:

Harassment training is about creating a culture, not checking a box

Bloomberg reports that demand for anti-harassment training videos has surged in the #MeToo era.

Here’s the problem, however. The Bloomberg article talks about training videos, the absolute worst kind of training.

Anti-harassment training is all about creating an anti-harassment culture in your workplace—about employees understanding what harassment is, how to complain about it, and that your company does not ever accept it.

How your problem employee is like an old hot water tank

Last night, my hot water tank died. It was old (14, to be exact).

During his shower, I heard Donovan yell, “Dad, there’s no hot water, and I’m freezing!” On a hunch, I traveled down to the basement, which is where I found puddles on the floor under and around the tank.

To be fair, we ignored a whole bunch of signals over the past few years. 

Fluctuating water temperatures. A 50-gallon tank that would often deplete in a half-hour. Neighbors that had replaced theirs years ago. 

Which got me thinking … an old hot water tank is not all that different from your problem employee.

Tattoos at work: more acceptance, yet still some legal risk

By ABC TV [Public domain],
via Wikimedia Commons

I am not a tattoo person. Yet, a whole lot of people are. And the numbers are increasing.

In fact, according to one recent survey, 3 in 10 Americans have at least one tattoo, up 50% in just four years. And, the younger you are, the more likely you are to sport a tattoo: 47% of millennials have a tattoo, as compared to 36% of gen Xers and only 13% of baby boomers.

Department of Labor trying to get employees PAID for inadvertent FLSA violations

Photo by Sharon McCutcheon on Unsplash

For almost as long as I’ve been writing this blog, I’ve been preaching the proactive benefits of wage and hour audits for employers (e.g., here and here).

It appears that the Department of Labor agrees.

Last week, it announced a nationwide pilot program—the Payroll Audit Independent Determination (PAID) program—which will permit employers to self-report FLSA violations to the Department of Labor without risk of litigation or enforcement proceedings. It enables employers to resolve inadvertent minimum wage and overtime violations without litigation.

WIRTW #497 (the “love” edition)

For the past 496 Fridays (plus a few off here and there) I have shared my list of what I read this week.

Implicit in each share is my recommendation that among those links are a few that you should read, too.

This week, however, there is only one thing you should (must) read.

Kevin Love, all-star power forward for the Cleveland Cavaliers, wrote about his life-long mental health issues.

6th Circuit is the latest court to conclude that Title VII expressly prohibits LGBT discrimination

Photo by Sharon McCutcheon on Unsplash

Yesterday, the 6th Circuit Court of Appeals joined a growing number of federal appellate courts to hold that Title VII’s prohibition against sex discrimination expressly covers LGBT employees.

The claimant in EEOC v. R.G. &. G.R. Harris Funeral Homes [pdf], Aimee Stevens (formerly known as Anthony Stephens) was born biologically male, and presented as such when hired. The funeral home’s owner and operator, Thomas Rost, fired her shortly after she informed him that she intended to transition from male to female and would represent herself and dress as a woman while at work.

“Measure twice, cut once," and, for the love of God, don’t email porn to everyone on your company’s contact list

Photo by Wes Hicks on Unsplash

In what may be the greatest (or, depending on your perspective, worst) employee mistake of all time, the Utah State Bar emailed a photo of a topless woman to more than 11,000 of its members.

For its part, the Bar has apologized, and has said it is investigating how the incident occurred and will publicize its findings.

Speculation on the cause of the unfortunate email ranges from hackers to a disgruntled employee.

It’s neither.

Readers, let me break this case for you.

The legal implications of employee tracking devices

Photo by N. on Unsplash

I once knew of company (not a client) at which its CEO would sit in his office all day and watch a bank of monitors connected to cameras all over the workplace so that he could track the productivity of his employees. He even had one outside the bathrooms to record how frequently, and for how long, his employees were taking potty breaks. Needless to say, morale among his employees was not great.

Monitoring of employees has gone even more high tech. The Chicago Tribune reports that Amazon has developed wristbands to track worker hand movements as they fill and ship orders in its warehouses and distribution centers.

A lesson on how to terminate an employee, care of David Brent.

In my opinion, the original British version of The Office is far superior to its American counterpart, in large part because David Brent is so much more cringe-worthy than Michael Scott.

I thought I’d start the week off with a little humor (and a little lesson), care of David Brent, via one of the most awkward employee terminations ever.

WIRTW #496 (the “troll” edition)

Troll:

“One who posts a deliberately provocative message to a newsgroup or message board with the intention of causing maximum disruption and argument.”

– Urban Dictionary

Trolls are a sad an unfortunate part of life on the internet. I put myself out there on a daily basis, and there will be idiots in the comments below, or on LinkedIn, Twitter, or Facebook, who will feel the need to have their ignorant say.

Courtney Barnett feels my pain, and crafted, via song, the perfect response:

Don’t you have anything better to do?
I wish that someone could hug you
Must be lonely
Being angry
Feeling over-looked
You sit alone at home in the darkness
With all the pent-up rage that you harness
I’m real sorry
’Bout whatever happened to you

 

Thanks CB!

Here’s what I read this week:

Save money on overtime payments with the fluctuating work week

Photo by rawpixel.com on Unsplash

In my never-ending quest to show you how many different ways you can screw up paying your employees under the federal wage and hour laws, today I am going to talk about how to properly calculate overtime payments for salaried, non-exempt employees.

An employer has two choices in how to pay overtime to a salaried non-exempt employee: by a fixed work week or by a fluctuating work week.

For reasons that will be illustrated below, the latter is a much more cost-effective option, and is your best way to save money overtime payments for this class of employees.

Spoiler alert: there is some math involved.

What the hell is going on at the NLRB with joint employment?

Photo by Cameron Kirby on Unsplash

If you are a small business owner, pay attention. Today’s update on the issue of joint employment will be one of the most important things you read this year.

Joint employment has been on a bit of a roller coaster ride at the NLRB over the past few months.

Today, I’m going to sort it all out for you, and try to explain where we might be headed next.


What is Joint Employment?

Joint employment is the sharing of control and supervision of an employee’s activity among two or more business entities, such that each is liable for the legal wrongs of the other to its employees (e.g., discrimination, wage and hour, OSHA, unfair labor practices…). It’s what would hold a franchisor liable for the wrongful acts of its franchisee, a contractor for its sub, and a business for its staffing company.

What are the Historic Joint Employment Rules?

For decades prior to August 27, 2015, is was uniformly established that for one entity to be a joint employer with another, it had to exercise direct and actual control over the terms and conditions of the other entities employees. Do they supervise? Are they subject to the same work rules? Can they hire, fire, and discipline? Who pays and how? Who provides benefits? Who assigns schedules and otherwise directs work? If one employer maintains control over these issues, then the other would not have been a joint employer.

Given this strict test, entities such as franchisors and general contractors felt reasonably comfortable that they were not liable for the acts of its franchisees and subs relative to their employees.

What Changed on August 27, 2015? 
Browning-Ferris Industries of Calif. 

In Browning-Ferris, the NLRB ignored and tossed out 40 years of precedent, and expanded the definition of “joint employer” not only to include those that exercise direct and actual control, but also those that exercise indirect control or reserve the potential to exercise control. OSHA and the DOL soon followed suit, and announced similar standards under their respective statutes. Small business owners, as well as other employers, (justifiably) panicked. If a franchisor, for example, is liable for the legal wrongs of its franchisees towards employees that the franchisor does not hire, fire, discipline, pay, or otherwise direct, why franchise at all? Why not just run the businesses, control the liabilities, and cut out the middle man?

December 14, 2017—Meet the New Boss, Same as the Old Boss
Hy-Brand Industrial Contractors

In Hy-Brand, the NLRB expressly overruled Browning-Ferris and restored direct and actual control as the lone test for joint employment:

[W]e overrule Browning-Ferris and restore the joint-employer standard that existed prior to the Browning-Ferris decision. Thus, a finding of joint-employer status requires proof that the alleged joint-employer entities have actually exercised joint control over essential employment terms (rather than merely having “reserved” the right to exercise control), the control must be “direct and immediate” (rather than indirect), and joint-employer status will not result from control that is “limited and routine.”

Bravo. Employers rejoiced.


The Celebration was Short Lived

On February 26, 2018, the NLRB vacated Hy-Brand, restoring Browning-Ferris (and its potential/indirect control tests) as the law of the NLRA on joint employment. Why? Because current NLRB board member Bill Emanuel, one of the three votes in Hy-Brand in favor of overturning Browning-Ferris, was a partner at the law firm that represented Browning-Ferris in 2015. This decision followed the report of NLRB inspector general David Berry earlier this month, which concluded that Emanuel should have recused himself from Hy-Brand, not because Emanuel engaged in anything improper, but because the appearance of a potential conflict should have caused his recusal.


What now?

For now, Browning-Ferris remains the law on joint employment under the NLRA. And, it likely will continue as such, as without Emanuel, the highly politicized NLRB will almost certainly split 2-2 on any rehearing of Hy-Brand.

Browing-Ferris had been pending on appeal and awaiting decision. The D.C. Circuit Court of Appeals, however, dismissed the appeal and remanded the case back the NLRB for disposition consistent with Hy-Brand. You should now expect more litigation over that issue in the D.C. Circuit.

As you can see, this issue is a bit of a muddled mess.

One easy solution is the federal (and bipartisan) Save Local Business Act. It expressly defines a “joint employer” under the NLRA and FLSA as one that—

directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over essential terms and conditions of employment, such as hiring employees, discharging employees, determining individual employee rates of pay and benefits, day-to-day supervision of employees, assigning individual work schedules, positions, and tasks, or administering employee discipline.

It passed the House last November, and now awaits action in the Senate.

This past summer, I asked if joint employment was the issue to unite our divided country. For the sake of America’s small business owner, I certainly hope it does. If you are concerned about this issue (and you should be), call or email your Senator and Congressperson to urge their support of the Save Local Business Act.

2nd Circuit holds that Title VII expressly bars sexual orientation discrimination as sex discrimination

Photo by Matias Rengel on Unsplash

Yesterday, the 2nd Circuit federal court of appeals (which covers New York, Connecticut, and Vermont) held that “Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of … sex.’”

With its decision in Zarda v. Altitude Express [pdf], the 2nd Circuit joins the 7th Circuit, and the EEOC in interpreting Title VII as such.

My thoughts on this issue are well documented throughout the archives.

“Exhibit A” for what’s wrong with the Fair Labor Standards Act

Consider this scenario.

Employer and Employee have a good-faith dispute over whether Employer owes Employee for unpaid overtime for time Employee spent traveling.

Employee sues.

Court awards Employee $608.08 for unpaid overtime (doubled to $1,216.16 as liquidated damages).

So far, this all seems kosher.

Then, however, Employee files his petition for attorneys’ fees.

$141,236.50 in attorneys’ fees.

WIRTW #495 (the “guns” edition)

I am not a gun person. If you want to dismiss what I am about to say because of my dislike of guns, that is your prerogative. Just skip down to the links, or come back on Monday, or don’t come back at all (although the latter is a bit closed-minded).

We have a major gun problem is this country. The solution starts with a conversation about universal background checks for all owners of firearms, mandatory waiting periods, and bans on assault weapons.

When does telecommuting qualify as a reasonable accommodation?

I’m writing today’s post from the comfort of the kitchen island in my house. My son has the flu, and I’m working from home.

It’s been three years since the 6th Circuit decided EEOC v. Ford Motor Co., a groundbreaking decision in which the court issued its en banc decision declaring that telecommuting is not an appropriate reasonable accommodation, unless the employee can show that that regular attendance in the workplace, and face-to-face interaction with co-workers, are not essential elements of the employee’s job. 

Yesterday, the same court decided Mosby-Meachem v. Memphis Light, Gas & Water Division [pdf], which defined the parameters of when an employee’s job does qualify for remote work as a reasonable accommodation.

Two recent issues of confidentiality of harassment allegations

The confidentiality of harassment allegations has been a hot topic of debate in the #MeToo and #TimesUp era.

Consider, then, each of the following two pronouncements on the issue by two different branches of the federal government—one by the NLRB and one by Congress.

The FMLA does not cover dead pets (maybe)

‘E’s not pinin’! ‘E’s passed on! This parrot is no more! He has ceased to be! ‘E’s expired and gone to meet ‘is maker! ‘E’s a stiff! Bereft of life, ‘e rests in peace! If you hadn’t nailed ‘im to the perch ‘e’d be pushing up the daisies! ‘Is metabolic processes are now ‘istory! ‘E’s off the twig! ‘E’s kicked the bucket, ‘e’s shuffled off ‘is mortal coil, run down the curtain and joined the bleedin’ choir invisible!! THIS IS AN EX-PARROT!!

In all seriousness, it sucks to lose a pet.

But, does it qualify an employee for FMLA leave?

NLRB dismisses James Damore charge against Google—complaints about too much diversity are not protected

It is lawful for an employer to fire an employee who complains that his workplace is too diverse? 

According to the NLRB, the answer, at least under federal labor law, is yes, the termination is legal.

WIRTW #494 (the “affirmative action” edition)

Today, I am pleased to announce that Meyers Roman has expanded our employment-law capabilities by adding Douglas B. Brown, LLC (DBB), a boutique national affirmative action law firm.

I’ll quote my firm’s official statement:

Focusing on management-side affirmative action compliance, DBB will significantly broaden, support and strengthen our Labor & Employment Group to assure our clients’ compliance with the increasingly complex affirmative action and Equal Employment Opportunity regulations for federal contractors and subcontractors. 

DBB has served a wide range of clients in the manufacturing, mining, construction, communications, financial, health care, social services and educational sectors. 

According to Seth Briskin, Managing Partner and Chair of our Labor & Employment Practice group, “the addition of the DBB firm is a real differentiator for Meyers Roman. It gives us the unique ability to offer affirmative action plans and related employment law consulting to our federal contractor clients and DBB’s established client base as well as a growing number of new clients both in Ohio and across the country.”

If you are a federal contractor or subcontractor and need an affirmative action plan drafted or retooled, are engaged in an OFCCP audit, or otherwise need affirmative-action related services, please let me know how we can leverage our new capabilities to help your business.

Here’s what I read this week:

Can you pay your employees in Bitcoin?

“What is Bitcoin? I don’t understand how fake money works.”

These were the words of my 9-year-old last week.

Let me try to help him, and you, out.

Federal judge hands Grubhub a huge victory in groundbreaking gig economy trial

Raef Lawson worked as a restaurant delivery driver for Grubhub for four months in late 2015 and early 2016. He claimed that the company misclassified him as an independent contractor, and owed him overtime for hours he worked over 40 in any workweek.

Last week, in Lawson v. Grubhub [pdf], a California federal judge granted the gig-employer a huge victory by ruling that Lawson and all other similarly situated drivers are independent contractors, and not employees.

Love and work aren’t always peanut butter and chocolate

I listened with great interest to the latest episode of the Hostile Work Environment podcast, which featured as its guest my good friend, Dan Schwartz, talking about the pitfalls of Valentine’s Day at work.

Dan cited CareerBuilder’s annual V-Day survey, which offers some interesting stats about the current state of office romances:

• 22 percent of workers have dated their boss (up 7 percent from last year)
• 31 percent of workers who started dating at work ultimately married each other
• Almost one in ten female workers whose work romance soured left their job
• 41 percent of workers had to keep their romance a secret

Yet, love and work do not always go well together, especially on Valentine’s Day.

What does it mean to be religious?

Lately, I’ve been thinking a lot about religion. Or, rather, what it means to be religious.

I am not religious. Or at least not in the organized sense.

This does not mean that I am an atheist, or a pagan, or a heathen, or whatever other aspersion you’d like to cast upon me.

It just means that I do not believe I need a building and a structure upon which to ascribe my beliefs.

WIRTW #493 (the “Super Bowl” edition)

Today’s goal:

Strive to be the type of employer that engenders this type of loyalty in your employees.


Here’s what I read this week:

Sexual harassment is the hiring scarlet letter

Dear Jon, 

I resigned from my last job amid allegations of sexually inappropriate misconduct. The allegations became public. Even though the women are all liars, no one will hire me. What can I do? 

Sincerely,
Steve W.

This example has played out (sort of) at my alma mater, Case Western Reserve School of Law.

What is your profession doing to combat harassment? Mine appears to doing a lot, as ABA adopts new anti-harassment policy

The policy-making body of the American Bar Association has adopted a formal resolution that urges legal employers to prohibit, prevent, and promptly redress sexual harassment and retaliation claims.

Moreover, to make sure that law-firm leaders are paying close enough attention, Resolution 302 [pdf] also urges that firms adopt measures to ensure that the heads of law firms are informed of the financial settlements of such claims.

The resolution contains the following key measures:

The 4th nominee for the “worst employer of 2018” is … the (in)humane harasser

The 4th nominee for the worst employer of 2018 is the Humane Society of the United States, which last month voted to retain its CEO despite an internal investigation that identified and corroborated three complains of sexual harassment against him.

Happy 25th FMLA … and happy #SuperSickMonday

Last night, my Philadelphia Eagles won the Super Bowl.

Today, the FMLA turns 25.

Over the past 25 years, it is estimated that employees have used the FMLA over 200 million times to take job-protected, unpaid time off work to address their own serious medical condition or care for a family member.

WIRTW #492 (the “step up” edition)

As a dad of a woman (girl) who may someday live in the music industry, I read with great interest the comments of Recording Academy President Neil Portnow, responding to why women were so under-represented as winners at this year’s Grammys.

It has to begin with … women who have the creativity in their hearts and souls, who want to be musicians, who want to be engineers, producers, and want to be part of the industry on the executive level… [They need] to step up because I think they would be welcome. I don’t have personal experience of those kinds of brick walls that you face but I think it’s upon us—us as an industry—to make the welcome mat very obvious, breeding opportunities for all people who want to be creative and paying it forward and creating that next generation of artists.

“Can I bring my peacock to work? It’s for emotional support”

United Airlines has blocked a customer from bringing her “emotional support peacock” on a recent flight.

Truth be told, whether it was a large peacock, or a small parakeet, or a dog, or any other animal labeled “emotional support,” the airline acted well within its rights, whether dealing with a customer or an employee.

The ADA makes no reasonable accommodation allowance for “emotional support animals” of any species and of any size. Period.

Why I’m a management-side lawyer

Every now and again it’s worth pulling a post out of the archives for a rerun.

Today, I look all the way back to April 15, 2008, for one of these reruns, to answer the question—

Why am I a management-side attorney?

Is employee copying of documents protected activity or unlawful stealing?

It’s a situation that plays out all too often. An employee emails a slew of documents to a personal email address, or drags them into a personal Dropbox, or copies them to a stick drive.

Your first instinct is to assume that the employee is engaged in something nefarious, fire the employee, and even sue for misappropriation of trade secrets/confidential information.

But might there be something else going on? What if, instead of competing against you, the employee is preparing to go to battle against you in a discrimination lawsuit?

Does an employee have a right to copy your documents to prepare a discrimination lawsuit?

SNL tackles #MeToo, but what should you do when employees discuss #MeToo at work?

How do you discuss sexual harassment and other sexual misconduct with your friends and colleagues?

Saturday Night Live, in one of its most brilliant sketches in a long time, offers a suggestion.


Or, rather, a suggestion not to have the conversation at all.

WIRTW #491 (the “rage” edition)

Last Friday, Fake ID played to a packed house at The Symposium, an old school rock club in Lakewood, Ohio. And, they absolutely brought down the house. Here’s their set closer, Rage Against the Machine’s “Killing in the Name.”


Why am I posting of video of a bunch of teen and preteen kids playing music? For starters, my daughter is the lead singer, and I think they’re very worthy of sharing.

Also, Fake ID teaches us a couple of employment lessons.

Age is not a valid predictor for success. Fake ID is comprised of two 11 year olds (including Norah) and three 14 year olds. In my opinion, they perform well above their young ages suggest. Don’t judge your employees, or prospective employees, by their age, judge them on their abilities and talents, whether old or young.

Talent is not a substitute for hard work. What impresses me most about how well Fake ID performs isn’t the performance, but all of the time and effort they put in to honing it. Lots of great talent wastes away by laziness and apathy. Your best employees will be the ones that work the hardest, period.

You have one more chance to catch Fake ID live this month, at Sky Zone Highland Heights, tomorrow, January 27, from 7 - 8:30 pm. No cover for the music, regular jumping rates apply.

Here’s what I read this week.

The Wile E. Coyote method of noncompete litigation

Wile E. Coyote. Forever chasing the Roadrunner. Always ending up falling off a cliff or crushed under a giant boulder.

Noncompete litigation. Sometimes you win an injunction. Sometimes the court drops a big boulder on your head.

Employee leave rights and the flu

I’m typing today’s post from my bed, where I convalesce with the flu.

Since I’m at home with the flu, I thought it worthwhile to discuss the leave-of-absence rights of employees with this illness.

Walmart (yes, Walmart) has now done more for worker rights than the U.S. government

Image by Sven via Wikimedia Commons

Earlier this month, Walmart announced sweeping additions to how it compensates its employees.

The 3rd nominee for the “worst employer of 2018” is … the camera creep

The third nominee for the Worst Employer of 2018 might be the creepiest I’ve shared yet.

From the Tampa Bay Times (c/o the ABA Journal):

Attorney James Patrick Stanton, accused of secretly videotaping nude and partially clothed female employees of a Tampa company, has agreed to never practice law again in Florida. 

WIRTW #490 (the “hilarious world of depression” edition)

Mental illness, especially among our youth, is an issue about which we do not pay nearly enough attention (to wit: this week’s suicide of Washington State quarterback Tyler Hilinski).

Today, I recommend that everyone check out The Hilarious World of Depression podcast.

The Hilarious World of Depression is a series of frank, moving, and, yes, funny conversations with top comedians who have dealt with this disease, hosted by veteran humorist and public radio host John Moe. Join guests … to learn how they’ve dealt with depression and managed to laugh along the way. If you have not met the disease personally, it’s almost certain that someone you know has, whether it’s a friend, family member, colleague, or neighbor. Depression is a vicious cycle of solitude and stigma that leaves people miserable and sometimes dead. Frankly, we’re not going to put up with that anymore. The Hilarious World of Depression is not medical treatment and should not be seen as a substitute for therapy or medication. But it is a chance to gain some insight, have a few laughs, and realize that people with depression are not alone and that together, we can all feel a bit better.

As a launching point, I recommend the January 2 episode featuring Rhett Miller (who also wrote and performs the podcast’s theme song, about “the world’s greatest clown”). Rhett talks frankly about his own teenage suicide attempt and how music saved his life. It’s a supremely worthwhile listen from one of the world’s great songwriters, and an all around good guy.

Here’s what I read this week:

Employee’s refusal to take drug test dooms discrimination claim

Can an employee, terminated for refusing to submit to a “reasonable suspicion” drug test, sue the employer for discrimination?

According to one recent federal district court opinion (and good ol’ common sense), the answer is no.

Employers win when they support the Sandwich Generation

I am declaring today New Year’s Day 2.0.

To put it bluntly, the first 16 days of 2018 sucked. I need a do over.

This has been my 2018 to date.

How likely are you to sexually harass?

Are you tired of seeing your Facebook feed littered with the results of your friends’ quizzes, with titles such as, “Which Game of Thrones Character are You?” or “Which Disney Couple Defines You?”

Well, I have one more quiz for you to take, and this one may just pique your interest.

It’s the Likelihood to Sexually Harass quiz.

Today’s America would deeply disturb Dr. MLK

A date appropriate reminder that our nation works better when our leaders seek to unite rather than divide.


We should strive to take these words to heart.

WIRTW #489 (the “on tour” edition)

It’s been awhile since I’ve posted a family rock ‘n’ roll update, so here it goes.

If you’re in the Cleveland area, you have three chances to catch Fake ID this month.

The Sky Zone shows are free. Tickets for the Symposium show are $6.

To stay updated on all things Fake ID, you should follow them on Facebook, Instagram, and YouTube.

Here’s what I read this week:

An argument for a more reasonable bereavement leave policy

I’ve been thinking a lot lately about death.

These past few days have been the first time I’ve had to deal with it on a family level as an adult. And there’s a lot to think about.

And it’s not just the grieving, and the crying, and the mourning.

It’s also time.

The 2nd nominee for the “worst employer of 2018” is … the arresting school board

There are lots of correct ways to respond to employee complaints.

Handcuffing and arresting the employee is most definitely NOT one of them. 

Yet, this is exactly what the Vermilion, Louisiana, school board did when a teacher, Deyshia Hargrave, tried to raise concerns at a board meeting about a proposed raise for her boss, Superintendent Jerome Puyau.

Thus, I have nominated this employer as the Worst Employer of 2018.

Sadness

We are incredibly sad today, as my mother-in-law passed away. Norah told me that her head was swimming and that she couldn’t process her emotions. I told her that while I couldn’t tell her how she should feel, I could share with her how I was feeling — sad, because I loved her and will miss her terribly, but also happy and blessed, because I got to have her as part of my life for the past 16 years.

A post shared by Jon Hyman (@jonhyman) on Jan 4, 2018 at 5:47pm PST

I’ll be back in the blogging mood sometime next week.

A real stinker of an ADA lawsuit

Amber Bridges, the former Lead Staff in the City of Indianapolis Magistrate Court, claims that her efforts to ease employees’ complaints about a co-worker's body odor got her fired.

When employees and staff members began to complain about the co-worker’s “chronic body odor,” Bridges installed air fresheners throughout the office.

Months later, however, the malodorous employee complained to her boss that the air fresheners created a hostile work environment. As a result, the City fired Bridges.

We have now entered the harassment-overreaction phase

When one of your biggest stars loses his high-profile job in one the year’s biggest sexual harassment scandals, how to you react?

With a brand new, and painfully detailed, anti-harassment policy.

The 1st nominee for the “worst employer of 2018” is … the holy harasser

The inaugural nominee for the Worst Employer of 2018 is a doozy.

I bring you (courtesy of the New York Post) the holy harasser.

The 12 Days of Employment Law Christmas (2017 edition)

For the past five Noels, I’ve concluded my posting year with “The 12 Days of Employment Law Christmas.” As this has become a year-end tradition at the blog, I’m sharing it again (with updated verses and links). If you’re feeling brave, post a video of yourself singing along.

(Some musical accompaniment)

Announcing THE WORST EMPLOYER OF 2017

The day has finally arrived. It’s time to announce the Worst Employer of 2017.

To remind you, we had three finalists in contention for this … honor:

Amid all of the sexual harassment concerns, let us not forget that other types of harassment exist

So much of the news lately has focused on sexual harassment, that it’s easy for one to forget that other types of harassment also exist.

For example, racial harassment.

Since we are but a week away from Christmas, I thought it appropriate to use a holiday-time example to illustrate.