Thursday, July 25, 2019
Which mental health service does the FMLA not cover?
Yesterday, I discussed our national mental health crisis, and the important role employers play in removing barriers to employees receiving the help they need. Then, I came across this post on LinkedIn, discussing a massive barrier that the FMLA institutionally imposes.
An individual suffering with a mental health issue has various treatment and therapy options available to them. For medication, one can see a psychiatrist, a primary care physician, or a nurse practitioner. For assessment and therapy, one can see a psychologist, a clinical social worker, or a licensed professional counselor.
Amazingly, however, the FMLA does not recognize one of these licensed mental health professionals as a “health care provider.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, July 24, 2019
Employee suicide is the next big workplace safety crisis
A recent headline at businessinsurance.com caught my eye:
It’s a pretty dramatic headline, but when you drill down into the statistics, it has a lot of weight.
- Suicide is the 10th leading cause of death in the U.S.
- Between the ages of 10 and 34, however, suicide is the second leading cause of death, and the fourth leading cause of death between the ages of 35 and 54.
- In 2017, 47,173 Americans died from suicide (more than double the number of homicide victims), and another 1.4 million attempted suicide.
- Between 2000 and 2016, the U.S. suicide rate among adults ages 16 to 64 rose 34 percent, from 12.9 deaths for every 100,000 people to 17.3 per 100,000.
- In 2016, the U.S. Bureau of Labor Statistics hit a record in its 25-year tally of workplace suicides at 291, with the number gradually climbing over the prior decade.
- The highest suicide rate among men was for workers in construction and mining jobs, with 53.2 deaths per 100,000 in 2015, up from 43.6 in 2012.
- The highest suicide rate among women was for workers in arts, design, entertainment, sports and media, with 15.6 deaths per 100,000 in 2015, up from 11.7 in 2012.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, July 23, 2019
The 14th nominee for the “worst employer of 2019” is … the horrible harasser
And, as bad as that sounds, that description barely scratches the surface of what is actually alleged to have happened in this workplace.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, July 22, 2019
Parental discrimination claims pose big risks for employers
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, July 19, 2019
WIRTW #560 (the “more kindness” edition) #IChooseKindness
Yesterday, I asked you all to join me in choosing kindness, and talked about Richard Cook’s Don’t Hurt Anyone Project. Over on LinkedIn, Richard took the time to share his thoughts on my post, which I’m sharing with y’all here.
Hi Jon, I am all in for #IChooseKindness Go! It is wonderful to see so many supportive comments. As you mentioned, I started the #donthurtanyoneproject There are a confluence of factors that led me to create something that felt so quaint and yet so urgent. One was sitting in the crowded gate area of airports waiting for a delayed flight. In my former career I did a lot of that. Inevitably I had the opportunity to talk with quite a few individuals. Sometimes we shared many of the same perspectives. Others not so much. But never in the latter of those two categories did a person get up and move to the furthest seat from me or I the same. We didn’t shout over each other. We just talked. When boarding time came we exchanged courtesies, sometimes shook hands and a few times figured out if we could be seated together to keep talking. It was hard for me to reconcile the “Divided States of America” narrative. No doubt that Americans disagree. However, I would suggest that for every ugly incident or rant that makes the news, there are far more that stop to help a motorist with a flat, make room in their family for a foster child or volunteer to help those struggling. Those people don’t ask for recognition but we need their energy. Urgently.
Let me know that you are choosing kindness by dropping a comment below, or by sharing your thoughts on any of your social channels with the hashtag #IChooseKindness.
Here’s what I read this week:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, July 18, 2019
I choose kindness
In a world that has decided
That it’s going to lose its mind
Be more kind, my friends, try to be more kind
Frank Turner, Be More Kind
I’m a huge fan of Richard, his project, and their message.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, July 17, 2019
There isn’t a “magic number” of racial or ethnic insults an employee must prove to establish a hostile work environment
Jamie Ortiz (of Puerto Rican descent) worked for the Broward County, Florida, School Board in various capacities for nearly 20 years, including, from 2009 through 2017, as an auto mechanic in the district’s garage under the supervision of Michael Kriegel.
According to the testimony of both Ortiz and many of his co-workers, Kriegel had some issues with Puerto Ricans and other Hispanics, which he expressed to anyone who would listen, including Ortiz, on a daily basis.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, July 16, 2019
A handy FAQ for service animals in the workplace
A local Subway recently earned itself some bad publicity when an employee denied access to a customer with a service dog.
While this story involved a customer, and not an employee, it did get me thinking about employee service dogs at work.
I created this handy FAQ on service dogs at work for your reference.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, July 15, 2019
The 13th nominee for the “worst employer of 2019” is … the excoriating executives
It’s been nearly a month since I posted the last nominee for 2019’s Worst Employer. It’s not for lack of ideas; it’s just that the prior nominees have been so awful that the bar for qualification has been set pretty high. Thankfully, France Télécom has come to the rescue.
What did the former top executives at France’s national phone company do to earn their nomination?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, July 12, 2019
WIRTW #559 (the “Happy Birthday D-Man” edition)
This guy turns 11 on Sunday.
Here’s what I read the past two weeks.
- No lockable private room for breast-feeding at workplace: $3.8 million award — via Overlawyered
- #MeToo: Looking to best teaching practices for effective training — via Employer Law Report
- What form of discrimination do juries hate most? (But, you’re probably doing the least to address.) — via Eric Meyer’s The Employer Handbook Blog
- “Sexual harassment” in the nature of the business — via Robin Shea’s Employment & Labor Insider
- 11th Cir.: Hospital employee fired for performance, not reporting racial slur — via HR Dive
- Federal Court Declares That a Ban on Mandatory Arbitration of Sexual Harassment Claims Is Inconsistent with Federal Law — via Financial Services Employment Law
- USWNT – Enough Already, This IS RIDICULOUS! — via Compensation Cafe
- Applicants are not required to disclose a pregnancy before or after being offered a job — via Richmond Times-Dispatch
- Your Job Candidates and New Hires are Ghosting You. This is What You’ve Earned and 9 True Tales of Ghosting at Work — via Evil HR Lady, Suzanne Lucas
- Yikes!!! Sometimes HR Pros and Managers Can Be Personally Liable for Violations!!! — via The EmpLAWyerologist, Janette Levey Frisch
- Office pranks shouldn’t end with the ER, vomit, or tears — via Ask a Manager
- Would You Fire Starbucks Employees Who Ask People to Leave for Questionable Reasons? — via The HR Capitalist
- Everybody Deserves PTO — via Laurie Ruettimann
- Border Patrol union president: Fire agents responsible for offensive Facebook posts — via CUE, Inc.
- Security Considerations in a BYOD Culture — via Dark Reading
- NIST Issues Report on Internet of Things Cybersecurity — via Ride The Lightning
- Cybersecurity For Businesses Part 1-How Cybersecurity Has Evolved — via Accellis
- Understanding Millennials’ And Technology’s Role In The Workforce, Part One — via Forbes
- More Companies Expanding Employee Monitoring — via EntertainHR
- Your Blockchain in HR Guide In Just 5 Minutes — via Workology
- To The Victors Go Few, If Any, Spoils In Wage And Hour Suits — via Law 360
- Can You Switch a Full-Time Worker Into a Contractor? — via Evil HR Lady, Suzanne Lucas
- Which Are They? Independent Contractors Or Employees? Navigating The Conflicts Between State And Federal Law — via Labor Employment Law Blog
- The cost of a $15 federal minimum wage — via Workplace Fairness
- Time Is Money: A Quick Wage-Hour Tip on … Time-Rounding Continue Reading — via Wage & Hour Defense Blog
- Dear Employers: You Can Go To Jail For Firing Employees Due To A Garnishment — via Donna Ballman’s Screw You Guys, I’m Going Home
- This One’s a Whopper! Court Puts Kibosh on Burger King Franchisee That Required Two Calls to Request FMLA Leave — via Jeff Nowak’s FMLA Insights
- NLRB speak on Employee Handbook Provisions (again). Private Sector Employers Take Note. — via BeLabor The Point
- The Gig Economy — via Labor Relations Institute
- NLRB Strengthens Employer Property Rights: What UPMC Means for Employers — via Hunton Employment & Labor Law Perspectives™
- NLRB Limits Duty to Bargain Over Disciplinary Actions — via Labor Employment Law Blog
- Do I Have to Buy a Standing Desk for My Employee? — via upstartHR
- Sixth Circuit Strikes Down Workers’ Compensation Claimant Solicitation Law — via The Employment Brief
- Ohio Senate Removes Damaging Changes to Workers’ Compensation Budget — via Ohio Chamber Blog
- Nonprofit Workplaces — via Harvard Business Review
- What Else is at Issue in the BWC Budget Bill? — via Employers Workers’ Compensation Law Blog
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, July 11, 2019
Rob Mendez won the Jimmy V Award at last night’s ESPYS, and it might be the most inspiring thing you’ve ever seen
Rob Mendez coaches the JV football team at Prospect High School in Saratoga, California. He’s also lived his entire life with no arms and no legs. He was born with tetra-amelia syndrome, an extremely rare genetic disorder that prevented their embryonic formation. You can read Rob’s entire (and entirely) compelling story at this ESPN feature story, or watch it in this Jon Hamm-narrated featurette.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, July 10, 2019
Why are employers testing job applicants for prescription medications?
During a pre-employment medical examination and drug screen, an applicant tests positive for Alprazolam, the generic form of Xanax (a medication commonly prescribed for anxiety), a fact she had already disclosed during the examination. The doctor performing the medical exam and reviewing the drug screen concludes that the applicant is medically acceptable for work as an intake specialist at an inpatient mental health facility. The employer, however, has other ideas. It withdraws the job offer without providing the applicant any opportunity to discuss the results.
The applicant sues, claiming disability discrimination.
Who wins?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, July 9, 2019
NLRB offers significant and important guidance on its new(ish) employee handbook rules
It’s been just over 18 months since the NLRB decided Boeing Co., perhaps its most significant decision in decades. It 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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, July 8, 2019
Why, yesterday, in France was a stadium full of people chanting “EQUAL PAY?”
Indisputable fact no. 1: Women and men should earn the same pay for the same work.
Indisputable fact no. 2: The players on the United States women’s national soccer team earn substantially less than their counterparts on the men’s team.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, July 3, 2019
4 ways your employees are like a new puppy
We are on day 5 of new puppy in the Hyman household. Dante is adjusting well, as are we (including big sister Loula … more or less). It’s been 7 years since we last raised a puppy. And the thing I forgot the most is just how many rules there are.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, July 2, 2019
There’s no such thing as “reverse” discrimination—it’s all just discrimination
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, July 1, 2019
Don’t forget about overtime pay when providing bonuses to non-exempt employees
This bonus program has the potential to be a great way for the restaurant to break through in a tight labor market to attract talent. It also, however, has the potential to pose an FLSA nightmare. Bonus payments often count as part of a non-exempt employee’s regular rate of pay, thereby increasing the overtime premium owed to that employee.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, June 27, 2019
Does an employer have a duty to protect the personal information of its employees? (Part 3)
Employees trust their employers with a whole bunch of personal information. Social security numbers, medical documents, insurance records, birth dates, criminal records, credit reports, family information, etc. And it’s not like employees have a choice over whether to disclose and entrust this information to their employer. These documents are all necessary if employees want to get hired, get paid, and obtain health insurance and other benefits. Thus, an employer’s personnel records are a treasure trove of PII (personally identifiable information — any data that could potentially identify a specific individual, which can be used to distinguish one person from another and de-anonymizing otherwise anonymous data).
For this reason, cyber-criminals target myriad businesses in an attempt to steal (and then sell on the dark web) this data.
If a company is hacked, and employees’ PII or other data is stolen, is their employer liable to its employees for any damages caused by the data breach?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, June 26, 2019
Facebook video sinks employee’s FMLA claim
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Tuesday, June 25, 2019
Employers are making new dog ownership a little less ruff by offering “pawternity” leave
In three days, my family grows by one. We’re adding a puppy.
My wife and kids have been clamoring for a new dog for a year. Loula (our current dog) is seven years old, and they don’t want to be in a position of not having a dog in our family. Plus, we don’t want to wait until Loula’s too old to tolerate the energy of a new puppy.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, June 24, 2019
The Customer isn’t always right: The Museum of Sex(ual harassment)
Just because an employee works at The Museum of Sex does not mean that she wants be sexually harassed. Or least that’s what Katherine McMahon alleges in her lawsuit against her former employer.
The New York Post offers the salacious details:
“Patrons and co-workers of the Museum grope its employees, use utterly inappropriate sexual language, and inquire into employees’ private sex lives,” the suit alleges.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, June 21, 2019
WIRTW #557 (the “infinity and beyond” edition)
Toy Story has played a huge party in my life. Donovan is a Toy Story fanatic. He’s seen every movie hundreds of times. He has what seems like every toy and every stuffy. Until the age of 6, every article of clothing he owned had a Toy Story character on it somewhere. Buzz and Woody (but especially Buzz) got him (and, by extension, us) through some really tough times when Donovan was a toddler. How could we do anything other than see Toy Story 4 on opening night.
My four word, spoiler-free review: Go now! (Bring tissues.)
My slightly longer, still spoiler-free review: Lots and lots of tissues.
My even longer, yet still spoiler-free review: Nostalgia has a very strong pull. It’s apt that much of this movie takes place in an antique shop, a place that’s all about nostalgia. Toy Story is extraordinarily nostalgic for my family, and if this is end of the road for the series, I can’t imagine a better ending.
Here’s what I read this week:
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Thursday, June 20, 2019
Is blockchain technology the next frontier in combating sexual harassment?
According to Employee Benefit News, Vault Platform has developed an app that uses blockchain technology to allow employees to document and report workplace sexual harassment on their smartphones.
“Interesting,” you say,” but what’s blockchain technology?”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, June 19, 2019
The 12th nominee for the “worst employer of 2019” is … the disguised doctor
Norma Melgoza, a long-time employee of Rush University Medical Center, is suing her employer for sex discrimination and equal-pay violations stemming from a denied application for a promotion.
In support of her claim of glass ceiling gender bias, Melgoza points to certain misconduct of the interviewing physician. I’ll let the district court explain.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, June 18, 2019
What’s a hostile work environment? You’ll know it when you see it.
“I know it when I see it.” These are the famous words of Justice Potter Stewart defining legal obscenity in his concurring opinion in Jacobellis v. Ohio (1964).
I feel the same way about a hostile work environment. For a hostile work environment to be actionable, it must (among other factors) be objectivity hostile. What does this mean? It’s hard to define, but I know it when I see it.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, June 17, 2019
How long of a leash must you give an employee before firing?
When a client calls me to ask for advice about firing an employee, the first question I always ask is, “What does the employee’s file look like?” I want to know if there exists a documented history of performance issues to justify the termination, and whether said issues are known and understood by the employee.
I ask these questions for two reasons:
- Can the employer objectively prove the misconduct to a judge or jury? Fact-finders want to see documentation, and if it’s lacking, they are more likely to believe that the misconduct was not bad enough to warrant documentation, or worse, that it did not occur. In either case, a judge or jury reaching this conclusion is bad news for an employer defending the termination in a lawsuit.
- Surprises cause bad feelings, which lead to lawsuits. If an employee has notice of the reasons causing the discharge, the employee is much less likely to sue. Sandbagged employees become angry ex-employees. You do not want angry ex-employees going to lawyers, especially when you lack the documentation to support the termination.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, June 10, 2019
Do your employees understand that social media is a very public conversation?
“It’s 2019. All of our employees have been on Facebook for years. Many are also on Twitter, and Instagram, and … We don’t need to do any social media training.”
If you’ve had these thoughts or internal conversations, allow me to offer Exhibit 1 as to why you are wrong.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, June 7, 2019
WIRTW #556 (the “comfort zone” edition)
My comfort zone is most definitely not at a biker rally. Yet, that's where I found myself last Saturday afternoon. The things we do for our kids. 🤷♂️
Click here for Fake ID’s killer set opener, War Pigs, by Black Sabbath, recorded at the Ohio Bike Week Block Party.
Needless to say, I’m pretty darn proud of my (not so) little girl.
Your next chance to see them live is June 15 at Crocker Park, in Westlake, Ohio. Details here for this free show.
Here’s what I read this week.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, June 6, 2019
An obituary for employment at-will
Well, Donna, there’s no need to terminate these laws; they are already dead.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, June 5, 2019
SCOTUS decides whether Title VII’s charge-filing precondition to suit is jurisdictional or non-jurisdictional
To file a private employment discrimination lawsuit under one of the federal employment discrimination statutes, a plaintiff must first exhaust his or her remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, June 4, 2019
Proposed law wants to convert “anti-vaxxer” into a protected class
With a couple of important exceptions, an employer can require that employees be up to date on their vaccinations.
The exceptions?
1/ An employee with an ADA disability that prevents him or her from receiving a vaccine may be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, June 3, 2019
Thorough internal investigation saves employer from discrimination claim
Open and shut discrimination case? Not quite.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, May 31, 2019
WIRTW #555 (the “you get a shirt, and you get a shirt…” edition)
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, May 30, 2019
The top 10 wage and hour mistakes businesses keep making
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Wednesday, May 29, 2019
Does the attorney-client privilege protect harassment investigations conducted by a lawyer?
An employee complaints to HR that her supervisor has been sexually harassing her. The allegations aren’t pretty, and, if the investigation is mishandled (or even if it’s handled perfectly), you are reasonably confident that the employee will sue the company. Thus, you want to ensure that every “i” is dotted and “t” crossed in the investigation. So, you bring in the big guns to handle the investigation—the company’s attorney.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, May 28, 2019
What does a valid jury waiver look like?
Earlier this year, the Senate took up the Forced Arbitration Injustice Repeal Act. It would, among other things, prohibit employers from requiring employees, as a condition of employment, to sign agreements submitting employment and civil rights claims to arbitration in lieu of filing in court. According to Vox.com, this legislation has some initial bipartisan support, and has some legit traction to perhaps become law.
I am on record as not being a fan of arbitration for employment disputes. I do not believe they are any less expensive or time consuming that in-court litigation. In stead, I've previously argued for tools such as contractually shortened statutes of limitations and jury waivers as tools employers can to limit risk instead of arbitration agreements.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, May 24, 2019
WIRTW #554 (the “triumph” edition)
How do we raise our girls to become confident women? It’s a question I think about a lot as a dad to an almost teenage girl.
🙋♀️ We encourage them to pursue their passions.
🙋♀️ We get them working collaboratively with other girls.
🙋♀️ We put them into positions to gain leadership skills.
🙋♀️ We praise their successes.
While I love School of Rock for both of my kids, this is why I especially love it for my daughter.
To see an almost 13-year-old (everyone wish Norah a Happy Birth Day for Monday) command a stage with skill and passion, and with the love, respect, and admiration of her peers, older and younger, fills this dad with a ton of pride and joy.
And it tells me that she’ll be just fine as an adult, whether her journey is through music or otherwise.
So enjoy Norah doing her thing last weekend (along with Donovan’s fly dance moves), taking the lead on Triumph by the Screaming Females.
As for Norah’s own band, Fake ID, you have two chances to see them live over the next few weeks.
- June 1 @ Ohio Bike Week, in Sandusky. They’ll be on the Scott Gast Memorial Stage, at Columbus Ave. and Water St., from 3:30 - 5 pm.
- June 15 @ Crocker Park, in Westlake. They’ll be rocking the square in front of Regal Cinemas from 5:30 - 7 pm.
Here’s what I read this week:
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Thursday, May 23, 2019
Defining (and defending) my role as an attorney: more on the employment of registered sex offenders
On Tuesday, I posted something that I did not imagine would be all that controversial, You just found out you hired a sex offender. Now what? Boy howdy was I wrong.
Over at Workforce.com (which syndicates my blog daily), the post had received (so far) 117 (mostly) alarmingly negative comments.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, May 22, 2019
In harassment cases, the context of profanities matters (but only sometimes)
“Why is everyone suddenly using the C-word,” asks Stan Carey in The Guardian? He blames Game of Thrones (video very NSFW—you’ve been warned).
Assuming Stan’s correct, and more people are becoming more comfortable openly using this generally considered highly offensive and taboo word, how should you react if your employees start using it among each other? Swiftly and decisively, that’s how.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, May 21, 2019
You just found out you hired a sex offender. Now what?
A reader sent me the following question.
I worked for a grocery store. Can a child molester be employed by the grocery store? I reported it to the manager, and showed proof and nothing was done about it.
There’s a lot going on here. What does the law require an employer to do (if anything) under these circumstances? And what should an employer do when it discovers it is employing a sex offender?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, May 20, 2019
The 11th nominee for the “worst employer of 2019” is … the 💩y supervisor
From the legaladvice subreddit:
So background, I have IBS and sometimes have to go the bathroom multiple times per work day. My supervisor doesn’t believe I am legitimately using the bathroom, so he said today at the end of the day today if I don’t send him a picture or otherwise prove that I used the bathroom, I will lose 15 minutes of paid time. What sort of recourse do I have?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, May 17, 2019
WIRTW #553 (the “669” edition)
Jack Ma, the founder of Alibaba (China’s answer to Amazon), claims that he has cracked the formula to a happy and productive workforce.
“We want 669 in life. What is 669? Six times in six days; the emphasis is on nine,” he said at a company gathering, referring to sex, and using a play on words, as the word “nine” in Mandarin is a homophone for the word “long.”
Here’s what else I read this week.
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Thursday, May 16, 2019
Abortion discrimination = pregnancy discrimination
Thanks to, among other states, Alabama, Georgia, and Ohio (sorry about that last one), the debate over abortion is raging. Suppose you are staunchly anti-abortion, and you learn that one of your employees is considering, or has had, an abortion. Can you fire her?
Thus far, three courts have looked at this issue, and all three courts have all reached the same conclusion.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, May 15, 2019
No, the feds should not ban noncompetes because of #MeToo
A recent op-ed in the USAToday argues that the federal government should outlaw noncompete agreements because they trap workers in abusive workplaces.
Since women who complain about harassment face retaliation and even termination, often the only way to escape it is to find a new job. Yet for many women, continuing their careers with a new employer turns out to be impossible.
That is because of noncomplete clauses. After they have resigned or even been fired, workers bound by noncompetes cannot accept employment in the same line of work or industry as their former employer for a specified period in a certain city, state or even the entire country. Nearly 30 million working people, including more than 12 million women, are locked into their jobs because of noncompete clauses.…
By depriving them of outside employment opportunities, noncompetes lock victims of harassment into abusive environments.
I could not disagree more. Noncompete clauses are not responsible for trapping sexual harassment victims in abusive workplaces.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, May 14, 2019
Ohio lawmakers seek to expand the protections of the Ohio Whistleblower Act
The first documented whistle-blowing case in the United States took place in 1777, not long after the signing of the Declaration of Independence, when a group of naval officers, including Samuel Shaw and Richard Marven, witnessed their commanding officer torturing British prisoners of war. When they reported the misconduct to Congress, the commanding officer charged Shaw and Marven with libel, and both men were jailed. The following year, Congress passed a law protecting whistle-blowers, and Shaw and Marven were acquitted by a jury.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, May 13, 2019
Crasslighting — Oops, #NotYou is NEVER a defense to #MeToo
Gaslighting — the manipulation of someone by psychological means to question their own sanity. It’s a term you’ve likely heard of.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, May 10, 2019
WIRTW #552 (the “comment of the week” edition)
Big thanks to Kristi Birkeland for the comment of the week, in response to yesterday's 12th blogiversary post.
If I ever I get the t-shirts and coffee mugs printed with this tagline, Kristi gets the first one.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, May 9, 2019
Happy 12th Anniversary to the Ohio Employer Law Blog
Twelve years ago today I launched the Ohio Employer Law Blog.
On May 9, 2007, I published, The Song Remains the Same — Has Burlington Northern Really Changed the Landscape of Retaliation Claims? Not my finest work, but everyone’s gotta start somewhere.
In the dozen years since, I’ve published 3,135(!) posts, which you have read millions of times. It’s truly astounding to me, and I thank all of you who have read, clicked, shared, commented, and connected with me over the years. The absolute best part of this endeavor is the relationships I’ve built and friendships I’ve made.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, May 8, 2019
Workplace civility shouldn’t be something we have to legislate
Workplace harassment isn’t illegal unless it is harassment because of some protected characteristic (sex, race, age, religion, national origin, disability, or any other class protected by law). Generalized workplace bullying or other mistreatment is not illegal unless it falls into one of those categories. Indeed, as the Supreme Court has repeatedly reminded us, workplace discrimination laws are not “a general civility code.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, May 7, 2019
Lessons from Game of Thrones on an employee’s duty of loyalty #spoileralert
If you haven’t yet watched this week’s episode of Game of Thrones, consider yourself warned. There are spoilers below. Turn back now if you don’t want to be spoiled.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, May 6, 2019
Your employees do not understand their (lack of) free speech rights
Congress shall make no law … abridging the freedom of speech….
So reads the 1st Amendment of the Constitution.
Take note that it does not say, “You have absolute freedom of speech in all things at all times.” It only prohibits government-imposed restrictions on speech.
Yet, just last week, President Trump tweeted the following:
I am continuing to monitor the censorship of AMERICAN CITIZENS on social media platforms. This is the United States of America — and we have what’s known as FREEDOM OF SPEECH! We are monitoring and watching, closely!!
I promise you that if the President of the United States does not understand how the 1st Amendment works, your employees don’t understand it either.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, May 3, 2019
WIRTW #551 (the “he went for the head” edition)
#DontSpoilTheEndGame
Really! DON’T SPOIL ENDGAME.
A Friendswood, Texas, Domino’s employee learned this lesson the hard way. He was cited by police after he assaulted a co-worker for revealing an Avengers: Endgame spoiler.
Here’s what I read this week:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, May 2, 2019
A cautionary tale on why we background check employees
A cautionary tale on why employers should conduct thorough background checks on employers.
In late 2013, Kristl Thompson, Ashley Raby, and Corbie Leslie filed a lawsuit against The Scott Fetzer Company (doing business as “The Kirby Company”), Crantz Development, and John Fields. The women claimed Fields had sexually assaulted them (including verbal abuse and harassment, inappropriate touching, forced sexual acts, and rape) on numerous occasions between May 2012 and January 2013. A number of these allegations resulted in felony and misdemeanor convictions against Fields.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, May 1, 2019
Handshakes, children’s poems, and the loss of responsibility
Handshakes could be BANNED under new workplace rules to avoid expensive sexual harassment claims
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, April 30, 2019
Should you pay if your business is attacked by ransomware?
Cleveland Hopkins Airport flight information boards have been out of service since last Monday (story here). Yesterday, after paying contractors more than $750,000 to restore them, the City finally acknowledged the cause—a ransomware attack.
Ransomware is malicious software that locks and encrypts a victim’s computer data. The criminal then demands a ransom to restore access, usually within a set amount of time. If the ransom is not paid, the data is destroyed.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, April 29, 2019
I REALLY thought people knew better not to advertise jobs “for whites”
Cynet Systems, an IT and engineering staffing company, had a viral mess on its hands over the weekend, after it posted a job that asked for candidates “Preferably Caucasian.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, April 26, 2019
WIRTW #550 (the #NoSpoilers edition)
What are your plans this weekend? I'll be avoiding the internet until 10:30 Sunday night.
We have a 6:40 Saturday showing of Avengers: Endgame, followed by Sunday night on the couch to see if the the gathered forces of good at Winterfell can stop the Night King and his army of the dead on Game of Thrones.
— The Night King (@WightsKing) May 12, 2018
I'll need a Xanax and a glass of wine to get to sleep after all this is done. #NoSpoilers
Here's what I read this week:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, April 25, 2019
Supreme Court signs off on death by a thousand cuts
Lingchi was a form of torture and execution used in China from roughly 900 BC until China banned in 1905. It translates variously as the slow process, the lingering death, or slow slicing. It's more commonly known as "death by a thousand cuts," in which the torturer uses a knife to methodically remove portions of the body over an extended period of time, ultimately resulting in death.
Yesterday, in Lamps Plus v. Varela, the Supreme Court held that parties to an arbitration agreement cannot be required to arbitrate their claims as a class action unless they specifically agreed to do so in the arbitration agreement.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, April 24, 2019
This disability discrimination lawsuit was no party
Party City has agreed with the EEOC to pay $155,000 to settle an ADA lawsuit the agency filed on behalf of a rejected job applicant on the autism spectrum and suffering from severe anxiety.
According to the lawsuit, the individual had been receiving services from Easter Seals of New Hampshire to build up her self-confidence, including working and applying for a job. These services included a job coach.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, April 23, 2019
Supreme Court grants review in three cases to decide, once and for all, whether Title VII protects LGBTQ employees from discrimination
Yesterday, the Supreme Court agreed to hear appeals in three cases, to decide whether Title VII's prohibition against "sex discrimination" expressly includes prohibitions against LGBTQ discrimination.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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