WIRTW #522 (the “back to school” edition)

If your kids go back to school and you don't post photographic evidence, does it count?

View this post on Instagram

First day of school: 7th and 4th grades. Also, I've officially entered the "Dad, you're embarrassing me" years.

A post shared by Jon Hyman (@jonhyman) on Aug 22, 2018 at 5:09am PDT

Here's what I read this week:

Compliance-by-carrot trumps compliance-by-stick

Democratic administrations are about enforcement.
Republican administrations are about education.

The endgame is still enforcement, but each side approaches this goal very differently.

This dichotomy might be an oversimplification, but, in at least in contrasting the Obama Administration to the Trump Administration, it is very true.

The FLSA's exemptions are becoming more "fair" for employers

In Encino Motorcars, LLC v. Navarro, the Supreme Court ruled that overtime exemptions under the Fair Labor Standards Act "are to be given a 'fair reading,' meaning they are not to be construed too narrowly" (as had historically been the case).

The Court applied this "fair reading" standard to conclude that automobile service advisors are exempt under the FLSA's automobile-service exemption.

Training won't fix stupid

A fast-food restaurant fired a recently hired employee after its manager learned she was pregnant.

How do we know this was the manager's reason for the termination? Because he texted it to the employee (which she later posted on Facebook).

WIRTW #521 (the “master of my domain” edition)

What's the top employee issue that makes HR folks queasy? Drugs? Sex? Pornography?

According to Robin Schooling, the worst conversation to have with an employee is about sexual self-pleasuring at work.

What's the most uncomfortable conversation you've ever had with an employee? Please share in the comments below.


Here's what else I read this week:

Does the FMLA protect organ-donation surgery as a "serious health condition?"

Organ donors are living saints. If you are in need of an organ to save your life, and someone is willing to sacrifice a kidney, or a liver segment, or bone marrow, and selflessly accept the pain and inconvenience, you are very, very fortunate.

Sacrificing one's organ to save another's life should not also result in sacrificing one's job.

Earlier this week, the U.S. Department of Labor Wage and Hour Division published Opinion Letter FMLA2018-2-A [pdf], which answers the question, "Does organ-donation surgery can qualify as a "serious health condition" under the FMLA?" (Thanks to Eric Meyer for bringing this to my attention.)

The answer is yes.

The FMLA defines a "serious health condition," in part, as an "illness, injury, impairment, or physical or mental condition that involves … inpatient care in a hospital, hospice, or residential medical care facility." "Inpatient care" means as "an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity … or any subsequent treatment in connection with such inpatient care."

According to the United Network for Organ Sharing, donors usually remain in the hospital four to seven days after the harvesting surgery. Thus, because organ donation commonly requires overnight hospitalization, it qualifies as a serious health condition covered by the FMLA.

Thus, covered employers (those with 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding calendar year) must provide FMLA leave to an eligible employee-donor (someone employed for at least 12 non-consecutive months, who worked 1,250 hours during the 12-month period preceding the start of the requested leave, and who works at a location with 50 or more employees within a 75-mile radius).

What if, however, you are not an FMLA-covered employer? Or the employee-donor is not FMLA eligible? Or they already used up their 12 weeks of FMLA leave? Think twice before you deny requested time off for organ donation.

• Many states have their own specific organ-donor leave laws that require leave above and beyond the FMLA.

• The ADA may require that you grant the time off with, or without, the FMLA or state-specific law. The ADA does not require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability. Nevertheless, the ADA mandates that an employer avoid treating an employee differently than other employees because of an association with a person with a disability. Thus, if an employer grants time off to employees for their own surgeries, the ADA will require similar treatment to employees taking time off to donate an organ to one’s association or relation.

Is it inconvenient for an employer to provide time off to any employee? Absolutely. Do you want to be in a position of defending your decision to fire that employee in the face of a leave request for the selfless act donating an organ to save another's life? Absolutely not. While such a decision is likely illegal, it's also undoubtedly inhuman. And it's that inhumanity that will cost your company dearly in front of a judge or a jury.

* Photo by Tim Gouw on Unsplash

I ❤️ my wife, and I ❤️ attendance policies

On August 29, 2003, I married my wife.

The ceremony was to start at 11 am, and by 10:55 I was nervous. Not your normal, "I'm about to get married" nervous, but the, "What the hell, we start in 5 minutes and my bride-to-be isn't here yet" nervous. With no cell phone on me, I just had to have faith that Colleen was on her way. Nevertheless, I was most definitely jittery.

Temporary employees have permanent legal rights

Temporary employees do not leave their legal rights at your door. In fact, they enjoy the same rights as your permanent employees.

Consider, for example, EEOC v. Massimo Zanetti Beverage USA, in which an employer recently agreed to pay $65,000 to settle claims brought by a temporary employee that she was subjected to a sexually hostile work environment and fired after repeatedly complaining about it.

The allegations are not pretty.

LaToya Young began working as a temp at Massimo Zanetti in late January 2015. Within 10 days of starting her placement, a male co-worker began making sexually harassing comments to her:

• Telling Young that he had "blue balls" and asking her "Why don’t you help me out with that?"
• Telling Young that he wanted to "suck [her] bottom lip."
• Telling Young that he wanted to have sex with her, often using lewd language.
• Telling Young that he imagined himself engaging in sexual relations with her.
• Telling Young that he would "ball [her] up like a pretzel" and would "have [her] screaming."
• Grabbing his groin area while looking directly at her.
• Blowing kisses at her.
• Licking his lips and biting his bottom lip while looking at her.

Young complained three times to her supervisor. The harassment continued unabated after the first complaint. After the second complaint, Young alleges that her supervisor warned her that going to HR "would jeopardize her employment." After the third complaint, she was fired. 

According to EEOC Regional Attorney Kara Haden, "Employers must take appropriate action to stop harassment of all employees, including temporary workers." She adds, "We hope that this case sends a clear message that the EEOC will hold accountable employers who fail to protect all employees from workplace harassment."

Take heed of this lesson. Your temporary employees have the same civil rights as your permanent employees.

* Photo by Sunyu on Unsplash

7 tips on how to handle cyber-sabotage and other insider cyber threats

Your employees are your company's weakest link, and therefore, your greatest threat to suffering a cyber-attack and resulting data breach. While employee negligence (that is, employees not knowing or understanding how their actions risk your company's data security) remains the biggest cyber risk, another is growing and also demands your attention—the malicious insider.

According to one recent report, malicious insiders are responsible for 27 percent of  all cybercrime. Over at her Employment & Labor Insider Blog, Robin Shea suggests that one recent workplace embarrassment for an employer was the result of internal cyber-vandalism, and not external hacking.

Dark Reading reports on a recent survey, entitled, "Monetizing the Insider: The Growing Symbiosis of Insiders and the Dark Web."

"Recruitment of insiders is increasing, and the use of the dark web is the current methodology that malicious actors are using to find insiders," explains researcher Tim Condello, technical account manager and security researcher at RedOwl.

Cybercriminals recruit with the goal of finding insiders to steal data, make illegal trades, or otherwise generate profit. Advanced threat actors look for insiders to place malware within a business' perimeter security. …

There are three types of people who fall into the "insider" category, says Condello: negligent employees who don't practice good cyber hygiene, disgruntled employees with ill will, and malicious employees who join organizations with the intent to defraud them. 

What is a company to do? I've previously discussed how to protect against the negligent employees who don't practice good cyber hygiene—training, training, and more cyber-training.

No amount of training, however, will stop a disgruntled employee with ill intent, or a malicious employee who joins to do harm.

These latter two categories need more specialized attention—an insider threat program. The Wall Street Journal explains:

Companies are increasingly building out cyber programs to protect themselves from their own employees.… Businesses … are taking advantage of systems … to find internal users who are accidentally exposing their company to hackers or malicious insiders attacking the company. These "systems," however, can prove costly, especially for the small-business owner. While investment in a technological solution is one way to tackle this serious problem, it's not the only way. Indeed, there is lots any company, of any size, with any amount of resources, can do to develop an insider threat program.

Aside from the expense of costly monitoring programs, what types of issues should employers include in an insider threat program? Here are seven suggestions:

1. Heightened monitoring of high-risk employees, such as those who previously violated IT policies, those who seek access to non-job-related business information, and those who are, or are likely to be, disgruntled (i.e., employees who express job dissatisfaction, who are on a performance improvement plan, or who are pending termination).


2. Deterrence controls, such as data loss prevention, data encryption, access management, endpoint security, mobile security, and cloud security.


3. Detection controls, such as intrusion detection and prevention, log management, security information and event management, and predictive analytics.


4. Inventories and audits for computers, mobile devices, and removable media (i.e., USB and external hard drives), both during employment and post-employment. 


5. Policies and programs that promote the resolution of employee grievances and protect whistleblowers.


6. Pre-employment background checks to help screen out potential problem employees before they become problems. 


7. Termination processes that removes access as early as possible for a terminated employee.

No company can make itself bulletproof from a cyber-attack. Indeed, for all businesses, data breaches are a when issue, not an if issue. However, ignoring the serious threat insiders pose to your company's cyber security will only serve to accelerate the when.

WIRTW #520 (the “cucaracha” edition)

Welcome to fun-fact Friday.

The Mexican folk song La Cucaracha has a long and fascinating history. It was popularized during the Mexican Revolution when each army would write verses as battle songs. Amazingly, one such verse, which has become the most popular version of the song, references marijuana:

The cockroach, the cockroach,
can't walk anymore
because it doesn't have,
because it's lacking
marijuana to smoke.

Maybe this explains why Speedy Gonzales was so speedy.


Here's what I read this week:

Dirty Harry, the worst recruiter ever

After yesterday's detective novel of a post, I thought I'd go with something light and airy today (if you consider watching Dirty Harry conduct a job interview of a female interviewee, while sharing his views on feminism and job quotas, light and airy).


My worst job interview? The interviewer forgot my appointment, and never showed up to work. It all worked out in the end. I came back a week later, and that's how I got my first job after law school.

What's you job interview horror story? Share in the comments below, and I'll pull the best (or the worst?) for a future post.

A cautionary tale about an attempted fraud (updated, 11:25 am)

I was recently the target of a highly sophisticated legal-services fraud. Thankfully, this scam set off my Spidey sense from the beginning, and I did not fall for it. I'm sharing so that others can learn the lengths that some will go to steal from professionals. (My apologies in advance. This post is long, but I think it's worth your time.)

An expensive lesson on disability harassment

With of all of the attention the #MeToo Movement has provided sexual harassment, employers must not forget that all forms of unlawful workplace discrimination include unlawful harassment.

This includes disability harassment.

For example, consider Caldera v. Department of Corrections & Rehabilitation (Cal. Ct. App. 7/9/18).

EEOC sues on behalf of harassed Catholic employee

Religion a funny thing. Throughout the history of mankind it's fueled so much hate, war, and death. And yet, it brings so much peace, comfort, and love to so many people.

My philosophy is live and let live. You believe what you want, and I'll believe what I want. Your religion is none of my business, just as mine is none of yours.

The world we be a better place is everyone lived this message. But not everyone does.

WIRTW #519 (the “R-I-P-R-E-S-P-E-C-T” edition)

While I've always loved Aretha's music, and her voice, and her soul, I never appreciated until watching yesterday's tributes how key of a role she played in the civil rights movement.

Rest in peace Queen of Soul. Your message and your spirit will be missed as much as your voice.

Here's what I read this week:

Can you lawfully fire an employee who writes "whore board" to protest a new overtime rule?

In Constellium Rolled Products Ravenswood, LLC, the NLRB held that an employer unlawfully fired an employee who wrote "whore board" on an overtime sign-up sheet.

How is this unlawful? Let's explore.

Are "digital addiction" claims about to invade your workplace?

There is no doubt that addiction is a protected disability under the ADA (and Ohio's parallel law).

Typically, we think of addiction as relating to drugs or alcohol. But, there's a new wave of addictions on the horizon—digital addictions.

Ohio's new cybersecurity safe harbor for businesses means the time for cybersecurity compliance is NOW

Do you know that the average total cost of a data breach to a business is $3.86 million?

This is a 6.4% increase over the past year.

For companies doing business in Ohio, some relief is on the way.

Protecting your business from an "Omarosa": workplace recordings and the law

Omarosa Manigault-Newman, formerly a contestant on Donald Trump's The Apprentice and also formerly an employee in President Trump's White House, secretly recorded Chief of Staff John Kelly firing her.

In 38 states plus the District of Columbia, this surreptitious recording would be perfectly legal.

WIRTW #518 (the “no-stress zone” edition)

What de-stresses you? Where do you go, or what do you do, that makes all the stress in your life melt away?

My wife and I recently spent a few days in Sedona, Arizona. We hiked, we jeep-toured, and we drank wine.

It was the most stress-free we've felt in years.

No one should be told to "suck it up" after requesting FMLA leave

If this was August 2017, I would be touting today's post as a strong contender for the "Worst Employer of the Year." It says a lot, however, about the quality (moral suckitude?) of this year's nominees that today's post can't even scratch 2018's list of nominees.

Juicing the reasonable accommodation low-hanging fruit

Would you rather spend seven figures to lose a lawsuit, or $1.69 to allow a diabetic employee to drink a bottle of orange juice?

The answer should be pretty clear.

Or maybe not?

Despite what one court held, workplace discrimination laws DO protect employees from non-employees

Pop quiz: Can an employer ignore harassment or other discriminatory behavior directed at employees by non-employees?

If your answer is "yes," you'd be in agreement with the court in Shaw v. Access Ohio (Ohio Ct. App. 7/27/18).

You'd also be dead wrong.

On religious liberty vs. workplace discrimination laws

Last week, Attorney General Jeff Sessions announced the creation of a "Religious Liberty Task Force" It will enforce a 2017 DOJ memo that ordered federal agencies to take the broadest possible interpretation of "religious liberty" when enforcing federal laws, including Title VII and other anti-discrimination laws.

According to Mr. Sessions, the task force as a necessary to "confront and defeat" secularism, "a dangerous movement, undetected by many, is now challenging and eroding our great tradition of religious freedom."

WIRTW #517 (the “interrupter” edition)

Every now and again I like to bring y'all some new music to discover for your Friday. It might not be new, and it might not be new to me, but it might be new to you. And I hope it's something you appreciate and will enjoy.

Today, I bring you The Interrupters.

They might be on the forefront of a ska, pop-punk revival. Comprised of three brothers, Kevin, Jesse, and Justin Bivona, and lead singer Aimee Interrupter, they have a bona fide hit on their hands, "She’s Kerosene," the lead single off their 2018 release, Fight the Good Fight. It's the first ska song to gain any radio play since No Doubt, and currently sits at number 28 on Billboard's Alternative Songs Chart (and climbing). And it's damn catchy.

Here they are performing their hit on Jimmy Kimmel Live last week:


Not only are their songs catchy, but the messages are positive, and the music is just plain fun. And god knows we need more positivity and fun these days.

To top it all off, they are nice people, fan friendly, and deserve all of the success they are achieving.

A soul-warming night of punk rock for this dad and his 11-year-old punk rocker. Thanks @interrupstagram @aimeeinterrupter @jessebivona @justinbivona @kevinsweatshop @theregrettesband @lydianight @genessa.jpg @mmaxxm @sagenicole @swmrs

A post shared by Jon Hyman (@jonhyman) on Dec 14, 2017 at 4:01am PST

So head over to your streaming service of choice and check out The Interrupters. I don't think you'll be disappointed. Or, better yet, go to wearetheinterrupters.com, buy some vinyl, and support some really good people making really good music.

Here's what I read this week:

The 14th nominee for the “worst employer of 2018” is … the HR pimp

The Federal Emergency Management Agency (FEMA) — the federal agency charged with responding to natural disasters — appears to have a disaster of its own to respond to.

It appears that its former HR chief offered creative "bonuses" to his male employees — he's accused of hiring women to be possible sexual partners to men working for the agency.

The worst employer of 1969

1969. Woodstock. Abbey Road. The Moon Landing.

And pregnancy discrimination.

It's not an oxymoron to be pro-civil rights AND represent management

I read a tweet last night that really angered me.

John Oliver and Anita Hill on fixing our workplace sexual harassment problem

When Anita Hill testified during Justice Clarence Thomas's confirmation hearing almost 27 years ago, the thought was that her story might be the beginning of the end of sexual harassment as a workplace problem. That clearly did not happen.

The #MeToo movement has now, once again, brought sexual harassment to forefront.

Last night, John Oliver tackled the issue on his HBO show.

WIRTW #516 (the “grand” edition)

Some things are destined to let you down. To fail to live up to the hype. The new movie that everyone is raving about. The hot restaurant that you just have to try. New Coke.

I was (ever so slightly) worried that the Grand Canyon would end up on this list. That we'd make the two-plus hour drive from our hotel in Sedona, walk up to the rim, take a gaze, and say, "Eh, it's a giant hole in the ground; let's go."

I'm happy to report that was not the case. The Grand Canyon very much lives up to its hype, its moniker, and its status as one of the seven natural wonders of the world.

Here's what I read this week:

6th Circuit offers a good reminder that the ADA is often a bilateral process

Like many people, I would love to have the time to exercise more. Life (and by life, I mean the 10 or more hours per day I'm often at work) gets in the way.

What if, however, you had the available time to exercise during the work day?

Or, for example, consider, McDonald v. UAW-GM Center for Human Resources (6th Cir. 6/21/18), which asks whether an employer is required to grant an extended lunch break as a reasonable accommodation to permit an employee to engage in disability-related exercise.

Per her employer's collective bargaining agreement, Shannon McDonald's employer permitted employees annually to elect whether to take a 60-minute lunch break, or a 30-minute lunch break with two additional non-contiguous 15-minute breaks. In 2014, McDonald opted for latter, yet kept extending her lunch by 30 minutes to exercise. She was born with Crouzon syndrome, a genetic disorder, which caused multiple surgeries over the years. She claimed that exercise helped alleviate pain from those previous surgeries.

The employer, however, caught on to McDonald's extended lunches, refused to permit her to change her annual election, and warned her that a continuing failure to follow its policy on breaks could result in discipline. It did, however, offer her an alternative. In lieu of granting an exception to her annual lunch-break election, the employer offered McDonald the option to use its exercise facility prior to the start of her shift. She refused, however, because she "would rather have been able to switch [her] lunch from a half hour to an hour," and that she did not want to "wake up early if [she] didn't have to."

Ultimately, the employer suspended McDonald. She had submitted a doctor's note asking for 60 minutes of exercise time as an accommodation. While the employer was considering the request, McDonald continued to violate its lunch break rule. That violation resulted in her suspension. While on suspension, she resigned, and sued.

The 6th Circuit affirmed the district court's dismissal of McDonald's ADA claim.

CHR never denied McDonald's request. True, her immediate supervisor told her it was not feasible and suggested alternatives. But the actual decision-makers had not yet rendered their verdict.… But McDonald didn't wait for an answer: she immediately went on personal leave after her suspension and quit just a few weeks after that. "[A]n employee cannot base a disability discrimination claim upon an employer's delay in providing a requested accommodation where the delay is due to internal processing or to events outside the employer's control."

Like many workplace issues, the ADA is a two-way street. An employee cannot claim the Act's protection by shutting down one of those lane and demanding a one-sided process.

WIRTW #515 (the “Murica – part 2” edition)

 

Thanks, Abe.

Here's what I read this week:

Discrimination

• Could forcing an employee to sign a last chance agreement lead to a retaliation claim? — via Eric Meyer's The Employer Handbook Blog
• It’s Not the Damages, It’s the Attorneys’ Fees — via Dan Schwartz's Connecticut Employment Law Blog
• How Managers, Coworkers, and HR Pressure Women to Stay Silent About Harassment — via Harvard Business Review
• Race Discrimination Based on More Than Color—“Jewish Blood” — via FisherBroyles

Technology

• Technology Plays a Part In the Employee Experience — via hr bartender
• The Practical Guide to HR Analytics — via Next Blog
  New York’s very broad cyberbullying bill 2.0 — via Walter Olson's Overlawyered
• Formal Insider Threat Risk Assessment Program Best Addresses Employee Threats to Critical Technologies — via Trade Secrets and Noncompete Blog  
• One-Third of Businesses Lack a Cybersecurity Expert — via Dark Reading
  Fifth Circuit Reverses Dismissal of Data Breach Coverage Suit Against D&O Insurer — via The D & O Diary

HR & Employee Relations

• Episode 36 – Fire Pole — via Marc Alifanz's and Dennis Westlind's Hostile Work Environment Podcast
• Traveling for Business? WeWork Will Only Reimburse Your Meals if They are Vegetarian — via Evil HR Lady, Suzanne Lucas
  Former Employee Stole $1.3 Million From The ABA — via Above the Law
• The First Amendment and Burping — via HR Hero Line
• Can You Rescind Your Resignation? Papa John's Former CEO Wants To Know — via Donna Ballman's Screw You Guys, I'm Going Home
• When are Background Checks Issued in the Hiring and Selection Process? — via Workology
• "No Poach" Recruiting Agreements Continue to Fall Across Corporate America — via The HR Capitalist, Kris Dunn
• Can Attorneys Be Liable For Directing Clients to Breach Non-Competes? One Federal Court Says Maybe — via Trading Secrets

Wage & Hour

• Auto-deducted lunch breaks land employer in hot water — via HR Dive 
• The Eleventh Circuit Affirmed It Was Not A “Crime” To Not Compensate For Dressing and Drive Time — via Employment Law Lookout
• Employee or Independent Contractor? Simple as A-B-C — via Impact Litigation Journal
• Federal Circuit Affirms Dismissal of Independent Contractor Misclassification Claim — via Employment Class Action Blog

Labor

• How to Balance the Need for Surveillance Against Protected Activity? — via EntertainHR
• Hey, Hey, Hey, Goodbye: DOL Persuader Rule Nixed — via Labor Relations

OSHA & Safety

• Call Me, Maybe? Court Rules that Phone Call to OSHA Constitutes Filing of Whistleblower Complaint — via Workplace Safety and Health Law Blog
• West Haven bathroom conditions prompt OSHA complaint — via Workplace Safety and Environmental Law Alert Blog

Dealing with IEDs in your workplace—employees with intermittent explosive disorder

Every workplace has had THAT employee. The hothead. Someone who loses their cool at the drop of hat. Yells, screams, and is prone to fits of rage.

It should go without saying that no one should be required to be subjected to this degree of misconduct. For this reason, you may (should?) decide to separate Hothead's employment.

What happens, however, if Hothead delivers a doctor's note advising you that he or she is being treated for "intermittent explosive disorder?"

6th Circuit says full-time work is not an essential function of every full-time job

Is an employer required to permit a disabled full-time employee to work a reduced work schedule as a reasonable accommodation?

In Hostettler v. The College of Wooster [pdf], the 6th Circuit concluded that it depends on the specific position, and that an employer risks violating the ADA by declaring full-time work as an essential function of a position without analyzing the actual need for full-time work for that position.

Firing of deaf employee costs Costco a Costco-sized verdict

I've thought a lot of things walking through Costco.

Why aren't the free samples out yet?

What the heck am I going to do with 10 pounds of cheese, but damn that's a good price?

How did I just manage to spend $250?

The one thing I've never thought?

It's so loud in here; I wish the employees would speak more quietly.

Are you ready for rolling background checks of employees?

Last week, Bloomberg published an article warning businesses to get ready for rolling background checks at work — the practice of running regular background checks of existing workers in addition to the routine pre-employment screening.

I bring this story your attention not only because it's quality information, but also because it happens to quote yours truly (thanks to Mike Sasso for the interview):

WIRTW #514 (the “Happy birthday D-man” edition)

Tomorrow, this guy turns 10. Or, as he says, only 1 day left for single digits.

 

Happy Birthday Donovan!!! 🎂🎁🎈🎉

You're the funniest, sweetest, most gentle soul I know.

Here's what I read this week.

Does an employer have a duty to protect the personal information of its employees?

Consider the following scenario.

An employer discovers that an employee who worked in its information technology department had been stealing older laptop computers. Some of those computers had been used in the employer's human resources department and contained former employees' personal information (including social security numbers and drivers' license numbers), which the company collected on each employee at the time of hire.

The 13th nominee for the “worst employer of 2018” is … the murdering manager

Today's post is a lesson in how not manage a poor performing employee.

Believe it or not, it's generally considered poor employee management to attempt to motivate employees by causing them serious physical harm. It's even worse when that serious physical harm results in an employee's death.

Brett Kavanaugh, Supreme Court Justice?

The pick is in. Brett Kavanaugh is President Trump's nominee to replace Justice Kennedy on the Supreme Court.

What type of Justice will Kavanaugh be? No one really knows for sure. All we can do is read his past appellate opinions, and hypothesize.

The opinion I'm offering for your consideration is Ayissi-Etoh v. Fannie Mae, a 2013 racial harassment case that asked the question of whether one isolated yet severe incident of discriminatory conduct — "Get out of my office n***er" — can suffice to establish a hostile work environment.

No, you can't require your employee to work during an FMLA leave

Today, I examine a question I receive all too often — can an employer require an employee to work during an FMLA leave?

So as not to bury the lede, the answer is pretty strong no.

To examine this issue, let's take a look at Lay v. Louisville-Jefferson Cnty. Metro Gov't (W.D. Ky. 5/29/18).

WIRTW #513 (the “Murica” edition)

I've been reflecting this week about what it means to be American.

We used to welcome tired, poor, huddled masses, yearning to breathe free. Now we lock their children in cages.

We used to foster global democracy with our allies. Now we shun our allies and cozy up to those who seek to undermine democracy.

The 12th nominee for the “worst employer of 2018” is … the soulless supervisor

I did not intend to run back-to-back "worst employer" nominees. And then I received this reader submission (thanks Suzanne Lucas).

The headline says it all:

Manager fired after her callous texts with a mom whose son is on life support go viral

The 11th nominee for the “worst employer of 2018” is … the supervisor supremacist

Last week, I asked why anyone is still using the N-word.

Which brings us to today’s nominee for the Worst Employer of 2018, which apparently did not receive the “Thou shalt never use the N-word, ever!” memo.

WIRTW #512 (the “war pigs” edition)

I spent last Saturday night at Crocker Park, in Cleveland's western suburbs, watching Fake ID rock that luxury shopping mecca harder than I dare say it's ever been rocked before.

I could have watched Norah and her bandmates play all night long. I had to settle for an hour and 40 minutes of dad-pride.

Including this one—a scorching cover of Black Sabbath's classic, "War Pigs."


Here's what I read this week:

As our workforce ages, age discrimination is only going to worsen

Happy Golden Birthday, Age Discrimination in Employment Act.

On June 13, 2018, the ADEA turned 50.

To commemorate this milestone, the EEOC just released a report entitled The State of Older Workers and Age Discrimination 50 Years After the Age Discrimination in Employment Act (ADEA).

Court upholds Postal Service's termination of employee over fear of "going postal"

What do you do when you learn that an employee may pose a risk of violence to your workplace?

Does your opinion change if you learn this information on the eve of the employee returning from a leave of absence for depression or other mental illness?

Mitchell v. U.S. Postal Service (6th Cir. 6/21/18) answers these questions.

Netflix demonstrates it has zero-tolerance for the N-word

Netflix has fired one of its top executives for his use of the "n-word" at work.

 

According to The Hollywood Reporter, sources say that Jonathan Friedland, Netflix's (now former) chief communications officer allegedly used the n-word in a meeting with other Netflix staffers, in which they were discussing the use of sensitive words in public relations communications. Friedland then allegedly exacerbated the problem by again using that word during a meeting with two of the company's African-American HR employees counseling him on the original incident.

Keep an eye on this 8th Circuit LGBT-discrimiation case

The 8th Circuit Court of Appeals has been asked to decide if Title VII expressly protects gay, lesbian, and bisexual employees.

The case—Horton v. Midwest Geriatric Management—involves an individual who lost his conditional job offer after, he claims, the owners of the company discovered his sexual orientation.

The 8th Circuit will be the 5th federal circuit to rule on this issue.

WIRTW #511 (the “dads” edition)

Since we just celebrated Father’s Day, I thought I’d use this space to highlight some of the best posts I read this past week about working dads:

• For Working Dads, Workflex Works — via Next Blog
• Why Workplaces Need to Be Fairer to Working Dads — via Harvard Business Review
• Five fun facts about fathers (in the workplace) — via Robin Shea’s Employment & Labor Insider
• Fathers Day offers a chance to ponder the disadvantages faced by many working dads — via Insight
• 2018’s Best & Worst States for Working Dads — via WalletHub
• Stay-At-Home Dads Still Struggle With Diapers, Drool, Stigma And Isolation — via NPR

As for my dad, he received a new fanny pack (I understand they are very much back in style; thanks, Amazon Prime, for delivering the gift four days late).

Here’s what else I read this week:

Should we require drug testing as a condition for unemployment benefits?

This is the question posed by Ohio House Bill 704.

Let's be clear. This law, if enacted, would not require drug testing as a condition for all applicants for unemployment benefits. Only those—

1. for whom there exists reasonable cause to suspect the unlawful use of a controlled substance; and 
2. whose most recent employer fired because of the unlawful use of a controlled substance.

EEOC sees no #MeToo uptick in harassment filings, but…

Earlier this month, the EEOC reconvened its Select Task Force on the Study of Harassment in the Workplace. One fact that came out of the agency’s meeting is that, according to Acting EEOC Chair Victoria Lipnic, the EEOC has yet to see an increase in sexual harassment charges in response to the #MeToo movement.

I do want to mention one other point that we have been frequently asked here at the EEOC - and that is - “have you seen an uptick in charges filed alleging harassment?” - sometimes, people ask, specifically about sexual harassment charges being filed with the agency?

Sometimes a cigar is just a cigar, and sometimes your employees make porn at work

Employees lose their jobs for lots of reason.

Including (allegedly) filming porn at work.

“Incredibles 2” is an incredible movie about working parenthood

Being a working parent is all about sacrifice. Not always being there for the small stuff. It might mean missing your daughter’s first date. Or not helping your son figure out his math homework. Or not experiencing your baby’s first word (or exhibition of superpowers).

For Elastagirl (aka Mrs. Incredible, aka Helen Parr) it means all of these things.

WIRTW #510 (the “communication breakdown” edition)

“Best Band I’ve ever heard!”
“You kids Rocked best band I’ve seen in long time. I would pay to see Fake ID again WOW”
“Could of listened to u all day. VERY IMPRESSED!”
“I was blown away by your talent! Very impressive!”

These are just a few of the comments made by folks who saw Fake ID play a killer hour-long set over the Memorial Day weekend at Ohio Bike Week. (I agree with all of the above comments, but I’m also a bit biased.)

If you are looking for something to do next Saturday evening, head to Crocker Park, in Cleveland’s western burbs, and check out Fake ID, which will be playing a free show from 5:30 – 7. They’ll be rocking the square in front of the Regal Cinema.

Here’s a taste of what you’ll see, from Ohio Bike Week.


Here’s what I read this week:

The 10th nominee for the “worst employer of 2018” is … the whitewasher

White only

If I told you that an employee hung this sign inside his workplace, you might think I was talking about 1950’s Mississippi.

I’m not. It’s 2018 Sacramento, California.

That alone would be enough to earn this employer (Vivint Solar) a nomination as the worst employer of 2018, but it’s just the tip of the racist iceberg.

Is technology the answer to your employees’ mental health problems?

The world was rocked last week, first by the suicide of Kate Spade and then by that of Anthony Bourdain. American suicide rates have skyrocketed, up 30 percent since 1999, emblematic of the larger mental-health epidemic we are facing.

Many point to the isolationism and perfection seeking created by our personal technology devices (and the social media they feed to us) as one the main causes of this epidemic.

But what if the analytical power of these devices could actually alert us to mood changes and create an earlier awareness of an impending personal mental-health crisis?

The legality of pre-certification communications with potential class members

Your nightmare as an employer has just become your reality.

A disgruntled former employee has launched a wage and hour class action lawsuit against you.

You’d like to get out ahead of the game by having your lawyers start marshaling your evidence. For example, they’d like to interview employees and gather affidavits in opposition to the eventual motion for class certification.

But can they?

NLRB clarifies its new employee handbook rules

Late last year, in Boeing Co., the NLRB rewrote more than a decade of precedent by overturning its Lutheran Heritage standard regarding when facially neutral employment policies violate the rights of employees to engage in concerted activity protected by section 7 of the National Labor Relations Act.

The Board scrapped Lutheran Heritage‘s “reasonably construe” test (a work rule violates section 7 if an employee could “reasonably construe” an infringement of their section 7 rights) with a test that balances “asserted business justifications and the invasion of employee rights” by weighing “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the requirement(s).”

WIRTW #509 (the “he did not just say that” edition)

CNN reports that billionaire real estate magnate Sam Zell recently said the following while speaking at a real estate investment trusts trade association:

I never promoted a woman because she was a woman. I never demoted a woman because she was a woman. My issue is what do you do, what do you produce, how do you interrelate to the rest of the business. I don’t think there’s ever been a, “We gotta get more pussy on the block, OK?”

To make matters worse, this is the same guy who, eight years ago, The New York Times alleged to be running a company rampant with sexual harassment and debasement, including executives openly discussing the “sexual suitability” of female employees.

Thank you, Sam Zell, for being “Exhibit A” of why my  job here is far from over.

Here’s what I read this week:

Can and should you ban employee phone use at work?

Last night, the fam packed up the Hyman-mobile and headed out to see Jack White. It was my 7th time seeing him in any of his incarnations (White Stripes - 4; Raconteurs - 1; Solo - 2, if you’re counting), and he never disappoints. This time, however, was different in one key aspect. Jack has banned all phones from his tour. That means no in-venue selfies, no grainy photos or crunchy videos, and no one staring down at a five-inch screen instead of watching the artist on stage. It was a different, and pleasant, way to experience a concert in 2018, an experience I had not had in what feels like a decade. Instead of at least partly focusing on my phone, I focused 100 percent on the artist and his performance.

Which begs the question: can and should you ban cell phones at work?