As seen on Reddit: Salary discussion bans are a BIG legal no-no

AriesAviator posted the following question in the LegalAdvice subreddit:

Boss just threatened to fire me and another co-worker because we were discussing a raise we both got- what should I do?

We both got pulled into a group chat over the app our work uses, and the first message reads as follows;

Hey I don't want to here about your raises with the other crew members we talked about this before, other places have strict rules either termination or reversal of the raise this is not okay, Don't turn something we tried to do nice for you too into a pain for us.

Which, uh, what the fuck?

I'm pretty fucking sure everything in there is MASSIVELY illegal.

Emotional outbursts as ADA-protected disabilities

The term hysteria comes from the Greek word hysterika, meaning Uterus. In ancient Greece it was believed that a wandering and discontented Uterus was blamed for that dreaded female ailment of excessive emotion, hysteria. The disease's symptoms were believed to be dictated by where in the body the offending organ roamed. It was not religious belief but a social belief.

Hysteria
https://academic.mu.edu/meissnerd/hysteria.html

Less than two months after Jessica Mullen's hysterectomy, she applied for a position as a stitcher with athletic footwear manufacturer New Balance. Within the first few weeks of her employment, her was having difficulty mastering one of the stitching machines, which led to an abrupt and (maybe) heated exchange with her trainer, Julie Prentiss. During that exchange, Mullen became upset and began to cry. Prentiss placed Mullen in a time-out in the break room, and contacted two human resources managers, Frances Fisher and Rachel Merry.

The 7th nominee for the “worst employer of 2019” is … the disability debaser

The 7th nominee for the Worst Employer of 2019 is an employer that (allegedly) permitted a nearly year-long campaign to malign and harass an employee living with ADHD and Tourette's syndrome.

Harassment need not be "hellish" to be actionable

Gates v. Board of Education of the City of Chicago (7th Cir. 2/20/19) asks a question that we see time and again in harassment cases—how bad does does the conduct have to be to support a harassment claim. The answer is bad enough, but not so bad so as to be classified as "hellish."

WIRTW #544 (the “it's a shame” edition)

I love how my kid's school embraces their individuality and creativity. Back in the fall, my wife and I had a quick conversation with one of Norah's teachers about her music, which led to him suggesting that she bring her guitar to school to share a song at one of their Wednesday morning all-division meetings. After a few weather related false starts, Norah finally had her chance this week. She chose to play It's a Shame, by First Aid Kit.

I fully understand that I am a biased dad. But, I also think that my 12-year-old's cover of the song (recorded by one of her friends) was a home run. Here's the link if you want to listen.

Here's what I read this week:

The legalities of employee mass walkouts vs. the practicalities of avoiding them in the first place

Three central Ohio Sonic restaurants are without employees after their entire staffs walked off the job in protest against new management and its policies.

According to The Scioto Post, employees left a handwritten note on the door, reading in part, "Due to terrible management the whole store has quit. The company has been sold to people that don't give a f*uck about anyone but themselves."

A 💩 disability discrimination case

A call center employee, suffering from Crohn's Disease, asks his manager for some flexibility in the company's break schedules or other accommodations for his bathroom needs. Instead, his supervisor accuses him of stealing time and fires him.

Or at least that's what Nicolas Stover claims happened to him at a Kentucky Amazon call center.

What a morning at the BMV teaches about cybersecurity

I spent way too much of my Saturday morning at the local Bureau of Motor Vehicles (aka the Walmart of government agencies). "Why," you ask? Because my plates were on the verge of expiring, and I had forgotten to take advantage of the much preferable online registration process.

So there I found myself at 10 a.m. Saturday morning, waiting in line. To be fair, it was the "express" line, designated for license renewals only. My experience, however, was less than express, thanks to the patron two spots ahead of me in line.

You're never too small to have an HR department

43 percent of American employees work for companies with 50 or fewer employees. I raise this statistic because it is almost a guarantee that many of these small businesses operate without a dedicated HR department or HR personnel.

Earlier this month, the EEOC settled a sexual harassment and retaliation lawsuit it had brought against several IHOP franchises operating in New York and Nevada. The allegations were truly awful, including misbehavior such as unwanted touching of female employees' buttocks and genitalia, graphic comments about sexual genitalia, invitations to engage in intercourse, and vulgar name calling, perpetrated by both managers and co-workers.

WIRTW #543 (the “terrible, horrible, no good, very bad day at the office” edition)

What was your worst day at work? Does it top the day that Cleveland criminal defense attorney Aaron Brockler had this past Tuesday?

I'll let Cleveland.com explain what happened:

A Warrensville Heights man shocked a courtroom full of spectators Tuesday when he sucker-punched his own defense attorney after a judge sentenced him to 45 years in prison…. Cuyahoga County sheriff's deputies took down David Chislton after the 42-year-old struck lawyer Aaron Brockler in the face with both of his handcuffed fists.

A courtroom deputy's body camera recorded the attack.


Brockler, who suffered injuries to his face and a possible concussion, at least kept his sense of humor, joking to reporters,"It was pretty fun."

File this one under why I don't practice criminal law.

Here's what I read this week:

If you want to stop workplace harassment, start by educating our children

How soon is too soon to start talking about harassment?

If we're talking about your workplace, the correct answer is that it's never too soon. You should start talking to your employees about your anti-harassment / anti-bullying / respectful workplace policies, expectations, and culture on Day One. A discussion should be part of each new hire's on-boarding and orientation.

What about outside of your workplace?

The 6th nominee for the “worst employer of 2019” is … the diverse discriminator

How many different ways can one employer discriminate? How about eight.

The EEOC recently settled a national origin and disability discrimination lawsuit against a staffing agency, brought on behalf of a group of Latino employees working at an Alabama poultry plant.

The FMLA does not require that an employee use magic words to request leave

According to the FMLA's regulations, "When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA." Courts do not interpret this burden as a heavy one. An employee need not use the letters "F-M-L-A," or any other magic words to request leave under the statute. As long as the employee provides enough information for the employer to reasonably conclude that an FMLA event described has occurred, the employee has met his or her obligation to provide notice of a request for an FMLA-qualifying leave.

What does this look like in practice? Consider the following two examples.

Do you know how to spot an employee at risk for violence?

Early Friday afternoon, Henry Pratt Co. informed one of its employees, Gary Martin, of his termination. Shortly thereafter, he opened fire with a .40-caliber Smith & Wesson, killing five of his co-workers and wounding five police officers. Martin himself was the sixth casualty, killed in a shootout with police.

After the news of this tragedy broke, reports surfaced of Martin's history of violence—six prior arrests by the local police department for domestic violence, and a decades-old felony conviction for aggravated assault.

All of which begs the question, should this employer have known that Martin was prone to violence, and, if so, should it have taken added measures in connection with his termination.

WIRTW #542 (the “Scared. Ashamed. Crippled.” edition)

A few days ago, Mark Goldstein, an attorney at Reed Smith, tweeted me (and others) this:

 

If you read on thing this week, read Mark's article, 'Scared. Ashamed. Crippled.': How One Lawyer Overcame Living With Depression in Big Law. We are in the middle of a mental health crisis in America. The more we talk openly about it, the more it becomes de-stigmatized, and the more comfortable those suffering will be to come forward and seek the help they need. It took a lot of courage for Mark to write this article. If you are suffering with mental health issues, or know someone who is, use Mark's example to ask for help. As Mark says, "You are not alone." We are here to help you, and will gladly do so, without judgment or scorn. 

Here's what else I read this week:

When the rumor mill creates a sexually hostile work environment

Just in time for Valentine's Day, I bring you the story of a employee rumored to be sleeping with her boss to get a promotion. She wasn't, but the workplace rumor mill sure thought she was.

The way we work might be changing, but independent contractors risks are staying exactly the same

The way we work in America is changing. The relationships between companies and their workers are more fluid and varied than in decades past. Our task in this appeal is to apply traditional legal protections to one such relationship. 

So starts the 6th Circuit's opinion in Acosta v. Off Duty Police Servs., which applies the traditional "economic realities" test to determine whether private security and traffic control officers are employees or independent contractors.

One would think that with such a pronouncement at the head of the 6th Circuit's opinion, the court would be making a startling pronouncement broadening the landscape of who qualifies as an independent contractor. Those making that assumption, however, are sorely mistaken.

A textbook lesson the ADA's interactive process

Does an employer have an obligation to return an employee to work following an extended unpaid leave of absence granted as a reasonable accommodation under the ADA?

You might be inclined to say, "Of course." The answer, however, is nuanced, and depends on the length of the leave, the composition of your workforce at the time the employee seeks to return to work, and your efforts to engage in the ADA's interactive process with the employee during the leave.

For your consideration: Brunckhorst v. City of Oak Park Heights.

Emojis are starting to pop up in discrmination and harassment cases 🤔🤷‍♂️

Law.com recently pronounced, "The Emojis are Coming!" That article got me thinking, are they coming to workplace litigation, too? After all, emojis are a form of communication, and work is all about communication. Which would suggest that we would start seeing them in harassment and discrimination cases.

According to Bloomberg Law, mentions of emojis in federal discrimination lawsuits doubled from 2016 to 2017. Let's not get crazy. The doubling went from six cases to 12 cases. But, a trend is a trend.

WIRTW #541 (the “Purl” edition)

Purl is an online-only Pixar short about a ball of yarn appropriately named Purl who gets a job in a bro-tastic workplace. As the only female, and only ball of yarn, working at B.R.O. Capital, she struggles to fit and yearns for acceptance from her all male, all human, co-workers. Purl's story has a lot to say about diversity and inclusion, and is well worth the just under nine minutes of your time.


Here's what I read this week:

FINRA's new "Best Practices" for Cybersecurity is MUST reading for any employer

The Financial Industry Regulatory Authority (FINRA) recently issued its Report on Selected Cybersecurity Practices – 2018 [pdf].

The Report identifies five common cybersecurity risks and outlines recommended practices for each:

• Branch controls
• Phishing attacks
• Insider threats
• Penetration testing
• Mobile devices 

While FINRA only regulates securities firms, the five topics its Report covers should be required reading for any employer that wants to understand how to implement cybersecurity best practices.

President Trump calls for federal paid family leave during State of the Union

Yesterday was the 26th anniversary of the Family and Medical Leave Act being signed into law. During last night's State of the Union Address, President Trump called for Congress to make paid family leave a federal law.

I am also proud to be the first president to include in my budget a plan for nationwide paid family leave — so that every new parent has the chance to bond with their newborn child.

How to recover a stolen computer from an ex-employee in seven easy steps

As many as 60% of employees who are laid-off, fired, or quit admit to stealing company data. Sometimes, they download information on their way out the door. Sometimes they email information to a personal email account. And sometimes they simply fail to return a company laptop or other device that contains the data. In the latter case, it costs an average of $50,000 for an employer to replace a stolen computer, with 80% of that cost coming from the recovery of sensitive, confidential, and proprietary information.

When you put this data together, it becomes increasingly apparent that businesses must take proactive steps to protect their technology and data.

The 5th nominee for the “worst employer of 2019” is … the fishy fishery

Atlantic Capes Fisheries agreed to pay $675,000 to settle a lawsuit filed by the EEOC alleging sexual harassment and retaliation.

The allegations that lead to the settlement, and this nomination as the worst employer of 2019?

WIRTW #540 (the “wheels off” edition)

The one question people ask me more than any other about this blog? "How do you write every day?"

My answer, "Because I love it."

The practice of law, for all of its challenges and rewards, can be mundane. This blog lets me be creative. I love the creativity of sharing information in a manner that makes it accessible and entertaining. If I didn't love this creative process, this blog would have died long ago, instead of just having passed 3,000(!) posts since it's inception nearly 12 years ago.

It is because of my love of this creative process that I implore you to check out Rhett Miller's new podcast, Wheels Off. It's conversations with creative people about their creative processes. Each of the first three episodes are outstanding listens, but my favorite thus far, the most interesting and engaging discussion, is Rhett's talk with Rosanne Cash. (Labor law bonus points for Cash, who discusses the musical she's writing based on the story of famous union organizer Norma Rae.)


The earnestness and passion of each as they share why they create as their careers is genuine and moving.

If you create anything in your lives, either as a vocation or avocation, or have any interest at all in those who do, I implore you to subscribe to Wheels Off in your podcast app of choice, and add each episode to your weekly listen.

Here's what I read this week:

Bad employment policies lead to new legislation

All the way back in October 2014, I wrote about an Illinois Jimmy John's franchisee that had required all of its employees to sign a Non-Compete Agreement as a condition of employment. 

I was not kind to this employer:

It's one thing to bind your managers and other high-level employees to a noncompetition agreement. It's another to require the same of your low-level sandwich makers and cash-register operators. The lower down the food chain you move, the harder it becomes to enforce these agreements.… [W]e're talking about sandwiches. What's the legitimate business interest this employer is trying to protect?

Yet, in the nearly half-decade since, employers have not heeded my advice. And, when employers fail, legislatures sometimes step in to fix.

Employment policies in the polar vortex

How frigid are the temperatures going to be in Northeast Ohio today? Just about everything is closed. Even the post office suspended mail delivery. Just because you remain open for business does not mean that your employees will be in a position to get to work. Pipes burst. Furnaces break. Cars die. And with schools closed, many parents need to remain home with their children.

In light of these historically low temperatures, here are five key considerations for workplace severe-weather policies, including including how to handle issues such as attendance, wage and hour, and telecommuting:

Employees on medical leave aren't bulletproof, but still handle with care

One of the questions that clients ask me most often is, "________ is out on a medical / pregnancy leave (or just returned); can we fire him/her?"

My response, always: "Why?"

NLRB flip-flops on key independent contractor test

The distinction between employees and independent contractors is one that still confounds employers. It is a vitally important distinction, because key employment laws, such as anti-discrimination laws, wage and hour laws, and labor laws do not apply to independent contractors.

WIRTW #539 (the “cover story” edition)

Big week in our house, as our 12-year-old daughter just had her first official press. Cleveland's Scene Magazine interviewed her for this week's cover story, on Cleveland-area cover bands.

 Needless to say, she was pretty jazzed about the whole experience.

And, she impressed the hell out of me:

Each new generation is also embracing classic rock—and some are even taking an open-minded perspective on the sonic opportunities afforded by cover bands. "People like seeing them because it's music that they can relate to that they've heard before," says Norah Hyman, the 12-year-old vocalist for Fake ID…. And, perhaps unsurprisingly given Hyman's generous perspective, Fake ID are putting their own spin on things.

"We tend to change in the songs to make it more difficult for us," Hyman says. "A lot of the vocal stuff, [my bandmates] let me decide what I want to do with it." Such freedom has helped improve her vocal technique, namely by showing her she doesn't have to add "grit" to her singing voice. "Now I'm able to put my own touch on the songs instead of copying them."

You can read the entire story here.


Here's what else I read this week:

What's is the dumbest workplace policy you've ever encountered?

I spent my day yesterday mediating a case before the Ohio Civil Rights Commission. The mediation took place in a conference room on the 8th floor of the state office building in downtown Cleveland. The hardest part of my day? Believe it or not, it was simply getting to the mediation.

Union membership is on the rise in Ohio; is your business ready?

Union membership numbers for 2018 are out, and while most employers should be encouraged, Ohio employers might think otherwise.

In Ohio, the percentage of workers belonging to unions is at 12.6 percent, up 0.1 percent from 2017. Nationally, union membership sits at 10.5 percent, down ever so slightly from 2017. In other words, Ohio’s union representation is both greater than, and growing faster than, the national average.

The 4th nominee for the “worst employer of 2019” is … the flagrant farmer

I'll let the EEOC do the heavy lifting on today's nominee for the Worst Employer of 2019 (the 4th thus far):

A federal jury rendered a verdict … awarding $850,000 in compensatory and punitive damages to a female farmworker at Favorite Farms in Dover, Fla., who was raped by her supervisor and reported it to police and management that same day.…

Ohio amends its employment laws to limit joint employment for franchisors

As the debate over the meaning of "joint employer" continues to rage at both the NLRB and in the federal courts, Ohio has jumped into the debate by passing legislation to limit this definition under various Ohio employment laws.

Effective yesterday, franchisors will not be deemed joint employers with their franchisees unless:

• the franchisor agrees to assume that role in writing or a court of competent; or
• a court of competent jurisdiction determines that the franchisor exercises a type or degree of control over the franchisee or the franchisee's employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor's trademark, brand.

WIRTW #538 (the “drones” edition)

OSHA is now using camera-carrying drones to investigate outdoor workplaces.

The good news? Use is intended to be limited to areas that are otherwise difficult and dangerous for OSHA inspectors to access. Plus, OSHA will not use them without an employer's consent.

The bad news? Employers that withhold consent could face OSHA's ire and a search warrant. Plus, the program lacks any protections for things like scope of recording, employee privacy, or third-party access to the video.

You can more about it at the Ohio OSHA Law Blog, here.


Here's what else I read this week:

An expensive lesson on religious accommodations

A federal court jury in Miami has awarded a hotel dishwasher $21.5 million after concluding that her employer failed to honor her religious beliefs by repeatedly scheduling her on Sundays, and then firing her.

Gillette's toxic masculinity ad isn't the problem; toxic masculinity is the problem

Gillette is facing a lot of praise, and a lot of backlash, over its recent ad slamming toxic masculinity culture.

NLRB reverses course and restores some sense to its concerted activity rules

The NLRB is the federal agency that saw the widest expansion of employee rights during the Obama presidency. And the doctrine that expanded the most was the Board's definition of protected concerted activity.

In Whole Foods Market, the NLRB had previously held that "activity by one individual is deemed concerted if undertaken in an effort to enforce the provisions of a collective-bargaining agreement or in order to initiate or induce group action." In other words, a lone wolf could act in concert with other employees based solely on his or her intent to do so. This rule lead to some absurd results.

Last week, in Alstate Maintenance LLC [pdf], the Board restored some much needed sanity to the definition of "concerted" for the purpose of protected concerted activity.

What's good for the goose? "Reverse" LGBTQ discrimination

If, like me, you believe that Title VII's definition of "sex" includes sexual orientation and gender identity, then what do you do with the claim of a heterosexual employee who claims discrimination because of her anti-LGBTQ views?

WIRTW #537 (the “Roma” edition)

We are contemplating spending Spring Break in Rome. For those who've been, what's you best tip for first-time visitors? Sights not to be missed? Things that are off the beaten path? Where to stay? Best pizza? Best gelato?

Drop a note in the comments below and let me know your Rome tips.

Here's what I read this week:

The 3rd nominee for the “worst employer of 2019” is … the barbarous boss

2019 is officially the year that my Worst Employer contest went international.

How do you motivate your employees to hit their sales goals? If you're the Runfa Hair Salon in Wuxi, China, you abuse the hell out of 'em.

What does it mean for jobs to be "substantially equal" under the Equal Pay Act?

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. Substantial equality is measured by job content, not job titles.

The 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 seniority, merit, quantity or quality of production, or any other factor other than sex.

A recently filed case out of Boston delves into these issues.

Beware pre- and postliminary activities

In Integrity Staffing Solutions v. Busk, the Supreme Court held that the FLSA only requires employers to compensate employees for time spent performing "preliminary" (pre-shift) and "postliminary" (post-shift) activities that are "integral and indispensable" to an employee’s principal activities. What are "integral and indispensable?" Those activities that are (1) "necessary to the principal work performed" and (2) "done for the benefit of the employer."

Your 2019 Employment Law Compliance Checklist

Today is the start of the first full week of 2019. Which means it's a perfect time to take a step back and review your efforts at HR and employment-law compliance for the coming year.

This list is not mean to be complete or exhaustive, but should provide a high level look at the top 20 issues that you should be reviewing this year, and every year for your business.

WIRTW #536 (the “Ex's and Oh's” edition)

It's been a bit since I've posted any of my kids' music, so here's Norah covering Elle King's Ex's and Oh's (one of my winter-break highlights).

 

And here's Fake ID closing their set at Stella's Music Club (another winter-break highlight).

Here's what I read the past few weeks:

Do as they say, not as they do: employees accuse Planned Parenthood of pregnancy discrimination

According to a scathing report by The New York Times, employees nationwide are accusing Planned Parenthood of engaging in rampant pregnancy discrimination.

Some examples:

The 2nd nominee for the “worst employer of 2019” is … the little rascal racist

Welcome to 2019. New year, same old employers earning themselves nominations for my annual race to the bottom.

Darryl Robinson, the only African-American employee in his Marriott Vacations Worldwide office, claims he was subjected to repeated racial harassment during his 11 months of employment.

'Twas the Employment Law Night before Christmas

'Twas the night before Christmas, when all through the office
Not a creature was stirring, well, just one of the bosses;
The bonuses were paid by the company with care,
In hopes that no ungrateful employees would swear.

Announcing THE WORST EMPLOYER OF 2018

The day has finally arrived. It’s time to announce the Worst Employer of 2018.

To remind you, we had four finalists in contention for this … (dis)honor:

• The Murdering Manager — company owner hires two men to rough-up a handyman who was not doing his job, and they accidentally kill him.

• The Sexist, Racist, Xenophobic, Oh My! — plant manager calls foreign-born employees "terrorists" and women "bitches," and tells the only black employee that her husband should work in a cotton field with a rope around his neck.

• The Supervisor Supremacist — supervisor begins morning staff meetings by saying "White Power" and giving the Nazi salute; when African-American employee complains, he finds himself hanged in effigy.

• The Tasering Torturer — company owner disciplines employee by threatening to kill him, lighting fires near him, and repeatedly shocking him with a taser.

 

The final vote wasn't close. The winner tallied an astounding 62% of all first place votes.

The Worst Employer of 2018 is…

CBS denies Les Moonves every penny of his claimed $120 million severance

Today is your last day to vote for the Worst Employer of 2018. The polls close at 11:00 pm tonight. I'll announce this year's big winner tomorrow.

Cast your vote here.

Before we crown this year's worst employer, I thought I'd mention an employer who did something right.

CBS.

Non-solicitation agreements are not a license to steal an employee's already existing customers

Hall v. Edgewood Partners Ins. Center (6th Cir. 12/14/18) [pdf] asks a question that we see arise often in litigation with former employees over restrictive covenants—can an employer limit an employee's access to customers, clients, or other contacts that the employee had prior to the employment.

Or, to put it another way, who owns an employee's pre-existing book of business, the employee or the employer?

WIRTW #535 (the “live from Cleveland” edition)

According to a recent survey, social media is the No. 1 challenge for small business owners. Allow me to offer a solution. 

Last month I had the pleasure of presenting, Think Before You Click! Managing Workplace Social Media. It's an hour-long run-through of myriad reputational and legal issues that employers face when the employees engage on social media.

(I wish YouTube picked a more flattering cover frame.)

Enjoy.


Here's what I read this week:

Why the Cleveland Clinic's $15 minimum wage matters to you

Earlier this week, the Cleveland Clinic committed, by January 2020, to raise the minimum wage for its employees to $15 an hour.

According to its CEO, Dr. Tom Mihaljevic, its all about making sure employees feel respected and valued … and attracting and retaining the best employees.

As the largest employer in Northeast Ohio and the second largest employer in the state of Ohio, Cleveland Clinic has a responsibility to lead the way and help shape the future of health care and the health care workforce.…

Every caregiver's role is important. Increasing our minimum wage demonstrates our commitment to our employees and their families, as well as the community and our patients. It is a reflection of who we want to be as an organization.…

Ultimately, we want to continue attracting the best and brightest caregivers in all roles. We want to remain an employer of choice and give back to the caregivers who do so much for the patients we serve at Cleveland Clinic. Our goal at Cleveland Clinic is to be the best place for health care and the best place to work in health care. To reach that goal, we will continue to align caregiver pay with other top employers in the markets where Cleveland Clinic operates.…

The Clinic joins other large employers—Amazon, Walmart, Target, Disney Parks, McDonald's—in adopting a $15 minimum wage.

Which is great for them and their employees, but why should this matter to you and your business?

Because by raising their minimum wage, you will have to do the same. Or you will if you want to attract and retain quality employees. These employers have moved the needle on the issue of the minimum wage. To compete in the job market against those offering a $15 minimum wage, other companies will have to match, or risk losing quality employees to higher paying employers. Thus, over time, the $15 minimum wage will organically spread.

This is not to say that this increased minimum wage is not without problems of its own. For example, if you raise your minimum wage to $15 an hour, what happens to all of those employees already earning $15 an hour? To the employee, hired 10 years ago at $8 an hour, who worked his butt off for the past decade, and, through a series of promotion and raises, earned his way up to $15 an hour? Will you provide a proportional raise to keep pace? And, if not, a $15 minimum wage will convert those millions of workers into minimum-wage employees. And, for better or for worse, there is a certain stigma with being classified as minimum wage—especially if you've worked hard for years not to be minimum wage.


These are not easy issues with easy solutions. However, the $15 minimum wage train has most definitely left the station, and there is no going back. The question is not if you will adopt it, but when, and how.

* Photo by Verne Ho on Unsplash

Alex, I'll take leave of absence policies for $5.25 million.

A: An employer must have one of these to avoid running afoul of discrimination laws when an employee is out on a medical leave of absence.

Q: What is an open-ended leave of absence policy?

Two employers recently learned this lesson the hard way, care of the Equal Employment Opportunity Commission.

The 1st nominee for the “worst employer of 2019” is … the philandering pharmacist

While I continue to tally votes to name the Worst Employer of 2018, I have an employer too awful not to kick off the nominees for 2019.

Meet Joyce Fogleman, the president, pharmacist, and sole owner of J&S Professional Pharmacy, who is, along with her pharmacy, the defendant in Blades v. J&S Professional Pharmacy.

With tongue planted firmly in cheek, Judge J. Philip Gilbert of The United States District Court for the Southern District of Illinois describes the employer as "your typical pharmacy."

A quick review on the rules for docking pay for exempt employees

"Can I dock part of an employee's paycheck?"

It's one of the questions I get most often from clients.

So, let's take a quick run through the rules of docking employee's pay for exempt employees.

WIRTW #534 (the “rock the vote” edition)

Have you cast your ballot for the Worst Employer of 2018? Time is ticking down for this year's final vote.

To remind you of the four truly awful employers vying for this year's honor, the finalists are:

• The Murdering Manager — company owner hires two men to rough-up a handyman who was not doing his job, and they accidentally kill him.

• The Sexist, Racist, Xenophobic, Oh My! — plant manager calls foreign-born employees "terrorists" and women "bitches," and tells the only black employee that her husband should work in a cotton field with a rope around his neck.

• The Supervisor Supremacist — supervisor begins morning staff meetings by saying "White Power" and giving the Nazi salute; when African-American employee complains, he finds himself hanged in effigy.

• The Tasering Torturer — company owner disciplines employee by threatening to kill him, lighting fires near him, and repeatedly shocking him with a taser.

Vote here.

Here's what I read this week:

Does Title VII protect an employee's self-help discovery?

Suppose one of your employees believes that she was discriminated against because of her protected class. She files a charge of discrimination with the EEOC, and, in support of the charge, provides the agency information from your confidential personnel files that she had copied. In response, you fire the employee for violating your confidentiality policy? She then files a new charge, alleging that her termination was in retaliation for her protected activity of gathering evidence in support of her discrimination claim.

Does her retaliation claim succeed?

Is your business rethinking its holiday party this year?

During the #MeToo portion yesterday's Best-Ever Year-End Employment Law Review that Five Employment Law Bloggers Have Ever Presented, Robin Shea suggested that the #MeToo Movement has altered employers' holiday-party plans this year.

Indeed, according to the 2018 Holiday Party Survey (conducted by the appropriately named outplace firm of Challenger, Gray & Christmas), 35% of employers do not plan to throw a holiday party this year, the lowest number since 2009. Given the current strength of our economy, one would expect an opposite trend, suggesting that something else is causing this uptick in grinchy employers.

The likely culprit? #MeToo.

Forced hugs at work sound like a REALLY bad idea

Ray Kelvin, CEO of UK fashion retailer Ted Baker, is a hugger. According to an online petition seeking to end his practice, "he greets many people he meets with a hug, be it a shareholder, investor, supplier, partner, customer or colleague." And, it doesn't stop with hugs. He asks young female employees "to sit on his knee, cuddle him, or let him massage their ears." He strokes employees' ears. He takes off his shirt in the workplace and talks about his sex life. Even worse, when employees go to HR to complain, they are told, "That's just what Ray's like."

Well, they've had enough "of what Ray's like." More than 2,600 people, including over 300 current or former employees, have signed the online petition calling on Ted Baker to "scrap the forced 'hugs' and end harassment."

What can "Elf" teach us about the ADA?

Friday night, the Hyman clan carried out our annual holiday tradition of watching "Elf." Since much of the story took place in and around various workplaces, this year I decided to watch with an eye towards shareable employment law lessons.


Early in the story, Buddy learns the harsh reality that he is not actually an elf, but a human. He learns this lesson after falling 985 Etch A Sketches short of his production expectations, and being transferred to Jack-in-the-Box testing (the job reserved for "special" elves).

Assuming that Buddy's height is a disability in the North Pole (and if the ADA protects dwarfs down south, it's safe to assume the North Pole's disability discrimination laws would similarly protect Buddy's heightened height up north), what ADA lessons does this parable teach us?

WIRTW #533 (the “Stella's” edition)

If you ever wanted to know how hard a group of pre-teens and teens can rock, you'll have your chance on December 21, when Fake ID invades Stella's Music Club. They play from 7:30 – 9:30, and word has it they are working up a few Christmas tunes for the season.

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Also, you still have time to register for The Best-Ever Year-End Employment Law Review That 5 Employment Law Bloggers Ever Presented—Tuesday, 12/4, from noon to 1 p.m. 

Join me, along with employment law bloggers extraordinaire Eric Meyer, Jeff Nowak, Dan Schwartz, Robin Shea, and our fearless (fearful?) moderator, Kate Bischoff.  

Register here

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Here's what I read this week.

I can name that lawsuit in one note

Demetria Kalodimos, age 58, worked as an anchor for Nashville's WSMV for 33 years. After the station failed to renew her contract, she sued for age and gender discrimination.