Employee fired for stacking his intermittent FMLA leave with vacation days loses retaliation claim

Kevin LaBelle, a lab technician for Cleveland Cliffs, took occasional days off from work for approved intermittent FMLA leave for flare-ups related to a shoulder injury. His employer noticed that LaBelle seems to always take his FMLA leave by combining it with scheduled days off and vacation days.

WIRTW #568 (the “work songs, vol. 1” edition)

Today, I thought I’d take a look at some of the best songs ever written about working. Here are my first five. (These are not necessarily the “top 5,” and are not in any particular order; they are just the five that came to mind.)

• “Working Class Hero” — John Lennon 

They hurt you at home, and they hit you at school
They hate you if you’re clever, and they despise a fool
Till you’re so fucking crazy, you can’t follow their rules
A working class hero is something to be
A working class hero is something to be

• “9 to 5” — Dolly Parton

It’s a rich man’s game
No matter what they call it
And you spend your life
Putting money in his wallet
Working 9 to 5
What a way to make a living

• “Longer Than You’ve Been Alive” — Old 97’s

Now I’ve made a living out of shaking my ass
And if you offer me an office, I’d have to pass
But our jobs are all jobs, and sometimes they suck
I love what I do, and I’ve had pretty good luck

• “Takin’ Care of Business” — Bachman-Turner Overdrive

And if your train’s on time, you can get to work by nine
And start your slavin’ jobs and get your pay
If you ever get annoyed, look at me, I’m self-employed
I love to work at nothing all day

• “Career Opportunities” — The Clash

Oi!
Bus driver
Ambulance man
Ticket inspector
I don’t understand

What songs would you add to my list? Drop a comment below and let me know.

Here’s what I read this week:

It’s hard to win a lawsuit when you admit you don’t have a case

James Scott’s employer fired him for accumulating 10 points under its no-fault attendance policy. He claimed FMLA retaliation, alleging that his employer unlawfully assessed some of his points while he was taking FMLA-protected leave to care for his ill wife.

At his deposition, however, Scott admitted that the FMLA had nothing whatsoever to do with his termination.

When alcohol is involved, the ADA distinguishes between “having a disability” and “disability-related misconduct”

Alcoholism is an ADA-protected disability. Yet, the ADA does not require that employers accommodate alcoholics by permitting them to drink, or otherwise be intoxicated, on the job.

Case in point? Dennis v. Fitzsimmons (D. Col. 9/5/19).

The supposed #MeToo backlash is just discrimination by another name

A recent study suggests that there has been a backlash against the #MeToo movement.

According to  the Harvard Business Review, men have are treating their females co-workers differently because of #MeToo.

• 19% of men said they were reluctant to hire attractive women
• 21% said they were reluctant to hire women for jobs involving close interactions with men
• 27% said they avoided one-on-one meetings with female colleagues

NLRB asks for help to overturn some really $%#^ bad decisions

“Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!!”

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

You’d think that if any of your employees lobbed any of these bombs at a supervisor or coworker, you’d have no legal issue if you fired them. And you’d be right … usually.

WIRTW #567 (the “passion” edition)

With a 13 year old with one foot dangling in the music business, I do a lot of reading about the music business, and what it means to live that life in 2019 and beyond. This article, written by Rhett Miller late last year, perhaps sums it up better than any I’ve read. It’s titled, The Loneliness of the Long Distance Rocker. And it paints a fairly bleak, isolating picture of what it’s like to be a musician  today.

In garages and basements and dorm rooms across the country and around the world, bands are forming this very minute. They are arguing over favorite songs, greatest albums, Stratocaster versus Telecaster, and inevitably which one of the members is going to have to switch from guitar to bass. These hopeful young dreamers give me hope. 

But we also shouldn’t kid ourselves: they are exceptions. For every one of these fledgling anarcho-syndicalist collectives, there are a thousand or a million kids alone in their bedrooms staring at Protools screens wondering what they have to do to get the Swedish cabal to write a hit song for them. They download a file onto Bandcamp or YouTube, start logging the hits, and pray. 

And oh my God, that sounds so lonely.

Yet, despite that depressing, like-count obsessed picture of today’s musician, Rhett’s tagline to his article is perhaps his most important thought. “Can music still save your mortal soul?” (He eloquently writes about how it saved his.)

I’m an optimist. As I look at my kids, and the community they are creating through the friendships and partnerships they are building through music, I have hope. Not hope for success or a hit song (because that’s not what it’s all about). But hope that they’ve found something to be passionate about, and like-minded people with whom to share that passion. For that’s what will lift them up and carry them through life. 

Here’s what else I read this week:

When common sense carries the day

Jordan does not explain how being disciplined for her unplanned absences and tardy arrivals created a hostile work environment. Without evidence indicating that she experienced severe or pervasive conduct, Jordan’s hostile work environment claim fails.

Every now again it’s refreshing to review a common-sense judicial opinion. Jordan v. United Health Group is just such a case.

Social media accounts are not telling you the whole story about your applicants and employees

If you rely on social media to paint for you a full and complete picture about your job applicants and employees, you are going to be very disappointed.

According to a recent survey, 43% of workers use privacy settings to keep material hidden from employers, and 46% have searched for their own names and taken further measures to conceal their social media presence based on what they found.

Why “ban the box” doesn’t work for employers or employees

Listen this clip from Ear Hustle (a podcast about “the daily realities of life inside prison shared by those living it, and stories from the outside, post-incarceration”), and then let’s chat about “ban the box.”

WIRTW #566 (the “sweet sixteen” edition)

We haven’t changed a bit after 16 years of marriage. Happy (yesterday) anniversary to my bestie!

Here’s what I read this week.

No, your FMLA does not grant you license to threaten your coworkers

After being harassed by co-workers, Paul Ellis took to Facebook to air his grievances publicly. Among his comments was one that could be perceived as a threat violence: “he’s gonna have an accident on the dock.” When another employee brought a printout of the post to their employer, FedEx, an investigation began. During that investigation. Ellis admitted that one could perceive that comment as a threat. As a result, FedEx fired him.

Prior to his termination, Ellis frequently took leave under the FMLA to receive treatments for his chronic back pain and to take care of his sick mother. He alleged that FedEx retaliated against him for his use of FMLA leave by terminating him.

This is what sex discrimination will look like if the Department of Justice gets its wish to legalize sex stereotyping

Last week the Department of Justice (on behalf of its client, the EEOC), filed a brief asking the Supreme Court to conclude that “sex stereotyping by itself is not a Title VII violation.”

What might this look like if the DOJ gets its wish?

Consider the following story (as told on Reddit).

Can an employer ask an employee to stop groaning in pain all the time if she refuses to seek medical treatment?

Last week I received the following email from Alison Green, who writes the entertaining and informative blog, Ask a Manager.

Hi Jon, 

I’m a huge fan of your work, and I wonder if you might be willing to weigh in with a legal perspective on a letter I’d like to print at Ask a Manager. If you’re up for it, I’d be delighted to print your thoughts, along with a link to your website and book (and anything else you’d like me to link to) in the Ask a Manager post where I tackle this letter. I’m not sure if this is something you do or not, but I’m hoping you might say yes!

My response: “Right back at’cha on the fandom. Happy to share my thoughts for your readers.” (When an email starts with, “I’m a huge fan,” it’s hard to say no.)

Here’s the question posed.

Is a vacation during an FMLA leave inconsistent with an employee’s serious health condition?

A few months ago I wrote about an employee fired for taking a fishing trip while out on an FMLA leave. In that case, the court upheld the termination as lawful. Recently, however, the Supreme Court of Massachusetts considered a similar case and reached the opposite result.

WIRTW #565 (the “back to school” edition)

My kids went back to school this week. 5th grade for Donovan and 8th grade for Norah. I sent them off with this advice.

Try your hardest, be your best you, and always be kind. 

Word to live by, whether you’re a student, an employee, or just a human being.

View this post on Instagram

A post shared by Jon Hyman (@jonhyman) on Aug 21, 2019 at 5:55am PDT

Here’s what I read this week.

The EEOC asks the Supreme Court to legalize sex discrimination

This fall, the Supreme Court will hear argument in three cases to decide whether Title VII’s coverage of sex discrimination also implicitly protects LGBTQ employees from discrimination. Last week, the EEOC filed its brief in the cases, making a startling argument in favor of legalizing not just LGBTQ discrimination, but all sex discrimination.

“Sex stereotyping by itself is not a Title VII violation”

Does the ADA cover morbid obesity? Federal appellate court says maybe 🤷‍♂️

Jose Valtierra weighed 370 pounds at the time Medtronic terminated his employment in 2014 for falsifying job reports. Valtierra claimed that he had been denied an accommodation for his morbid obesity, which he alleged caused him to be unable to perform his job. Hence, the fake job reports.

The 9th Circuit Court of Appeals punted on the issue of whether "morbid obesity" is a disability covered by the ADA.

New study reveals that age discrimination remains a worsening problem for employers

Insurance company Hiscox just released its 2019 Ageism in the Workplace Study [pdf], which revealed some sobering statistics about the growing problem of age discrimination for American employers.

Is it legal to dock the pay of employees who skip a political rally being held in the workplace?

Has an employer violated the law if it docks the pay of an employee who skips a speech being given by Donald Trump in their place of employment?

Over the weekend news broke of a Pennsylvania employer who had an interesting way to influence its employees attendance at a rally Donald Trump was holding at their place of employment during the work day. Only pay those employees who show up.

“NO SCAN, NO PAY,” a supervisor wrote to his employees.

WIRTW #564 (the “Woodstock” edition)

At this moment very moment, 50 years ago, an estimated 400,000 people were gathered on Max Yasgur’s dairy farm in Bethel, New York, celebrating 3 days of peace and music.

Woodstock.

On Sunday, my kids will take the stage at the Rock & Roll Hall of Fame as part of School of Rock’s Woodstock Festival. Each of the three local Schools of Rock will perform a shortened version of their full Summer Woodstock shows. 

Here’s a short preview of what you’ll see. Donovan on vocals, and Norah holding down the bass and adding more vocals, on Sly & Family Stone’s Sing a Simple Song.

View this post on Instagram

A post shared by Jon Hyman (@jonhyman) on Aug 4, 2019 at 2:43pm PDT

The performance runs from 2 - 5 on Sunday on the big stage on the Rock Hall plaza. The music is free; the love isn’t (they’re just kids after all).

Here’s what I read this week.

Government sanctioned discrimination is abhorrent and we, as a nation, should be ashamed

Trigger warning: today’s post is not for everyone. If, however, you are offended by what I am about to say, then today’s post is specifically for you.

Yesterday, the Department of Labor’s Office of Federal Contract Compliance Programs, the federal agency that regulates and governs federal contractors and subcontractors, proposed regulations to clarify the scope and application of the religious exemption contained in section 204(c) of Executive Order 11246.

You are DUMB if you threaten to fire employees who support labor unions, and even DUMBER if you tweet about it #barstool

Meet Dave Portnoy. He’s the editor of Barstool Sports, a website that I can only describe as having missed the memo entirely on #MeToo. Mr. Portnoy describes himself as: “El Presidente/3 time Bee Sting survivor. Heart attack survivor. 2019 #dipoff champion. Shot 4 under at Shinnecock. Worshipped like a 3rd world dictator.”

#yuck

Portnoy also holds some strong opinions, including about labor unions.

The law is a floor, not a ceiling: FMLA and IEP meetings

Last week, the Department of Labor issued an opinion letter [pdf] making clear that covered employers must provide intermittent FMLA leave to eligible employees who need time away from work to attend meetings to discuss the Individualized Education Program (IEP) of the employee’s child.

Rather than discuss the opinion letter in detail, I’ll instead direct you my blogging friends—Jeff Nowak, Suzanne Lucas, and Eric Meyer—each of whom covered this story over the past few days.

Instead, I want to use my space today to make a broader point about the law in general.

Do you know what to do if ICE shows up at your business?

Last week, US Immigration and Customs Enforcement agents arrested nearly 700 immigrants as part of a series of raids at work-sites throughout Mississippi. The raids are part of the Trump administration’s ongoing crackdown on illegal immigration.

What if ICE shows up at your business. Do you know what to do?

I’ve covered this topic previously. Given the recent news, It thought it was worth revisiting. You can read my thoughts here.

* Photo Courtesy of ICE. [Public domain], via Wikimedia Commons

WIRTW #563 (the “work in progress” edition)

Work in Progress is band fronted by Gaten Matarazzo, who is better known for his role as Dustin on Stranger Things. Next week, his band is coming through Cleveland on their summer tour, and, amazingly, my daughter’s band gets to open for them at this sold out show. I’m beyond excited for the opportunity this presents for her and her bandmates. Stay tuned for pictures, stories, etc.

Here’s what I read this week:

Who owns intellectual property created for a company?

Growing up in Philadelphia, there are few things more beloved than the Phillie Phanatic. Which is why I’m so intrigued by the lawsuit the Phillies recently filed against the people who claim to own the rights to the mascot the team contracted them to create in 1978.

Which got me thinking … what rights does a company have to intellectual property created by an employee or an independent contractor?

EEOC settlement teaches lesson on extended leaves of absence as ADA accommodation

An employee tells you that he was recently diagnosed with prostate cancer and needs a few weeks off for treatment, surgery, and recovery. Assume either you’re not an FMLA-covered employer or that the employee is not FMLA eligible.

Do you?

It is an inexcusable sin for an employer NOT to have an anti-discrimination policy

There are some employment policies that you can get away with not having. An anti-discrimination policy is not one of them.

In Hubbell v. FedEx SmartPost (decided yesterday by the 6th Circuit), FedEx learned this lesson the hard way.

Help me understand guns

This weekend was one of the deadliest on record ever for gun violence. Dozens were killed and more injured in separate shootings in El Paso, Texas, and Dayton, Ohio.

So, today, I take a diversion from employment law to ask a simple question.

Can someone help me understand guns?

WIRTW #562 (the “someday we’ll find it” edition)

When the whole world seems like it’s going to 💩 , sometimes all you need to brighten your spirits is a video of 🐸 singing about a 🌈.

So here’s Kermit the Frog (along with My Morning Jacket’s Jim James, and Janet Weiss, Sleater-Kinney’s ex-drummer) performing the Muppets’ classic, Rainbow Connection, from his surprise performance at last weekend’s Newport Folk Festival.


(I really want to find the two people who thumbs-downed this video on YouTube.)

Here’s what I read this week.

When an employee’s religion clashes with an employer’s dress code

A Muslim woman is suing the hospital at which she works as medical assistant, claiming she was told she needed a “note from the Quran” when she asked for an exception to the hospital’s dress code to wear a face covering during Ramadan.

The case, Boyd v. Cooper University Hospital, is pending in federal court in New Jersey. While it’s just filed, and years from resolution, we can use it to learn how an employer should react when a employee dons religious garb in the workplace.

Do workplace bullies violate OSHA?

According to a study recently published in the Journal of Applied Psychology, bullying bosses make workplaces less safe.

Poor treatment from a boss can make employees feel that they’re not valued by a group. As a result, they can become more self-centered, leading them to occasionally forget to comply with safety rules or overlook opportunities to promote a safer work environment.

The headline made me think that if bullying contributes to an unsafe workplace, can it also violate OSHA? The answer is quite possibly yes.

Labor and employment lessons from the world’s most combative stripper

Different type of stripper

Meet Brandi Campbell, a stripper and self-proclaimed labor activist for other strippers nationwide. She maintains stripperlaborrights.com, where she provides dancers with information about their legal rights, including their rights under the National Labor Relations Act. She’s filed (and won) unfair labor practice charges against clubs in Nevada, Minnesota, and Wisconsin, alleging that they discriminated/retaliated against her for engaging in statutorily protected activities and deprived dancers of their statutory rights by misclassifying them as independent contractors.

#MeToo hasn’t killed the office romance, just the inappropriate ones

According to the National Review, #MeToo killed the office romance.

It must be a brave soul who dares to strike up a flirtatious conversation at the workplace microwave these days. Only ten percent of Americans report having met their mate at the office, a level that is half what it was in the 1990s.

WIRTW #561 (the “don’t call me flaky” edition)

According to The Economist, dads face greater workplace penalties for taking parental leaves than do moms.

Americans see taking a break to care for children as a sign of lower commitment to work and even flakiness. … Whereas mothers who take time off to rear offspring face difficulties when returning to work, opt-out fathers may fare worse, says Scott Behson, author of a book called “The Working Dad’s Survival Guide: How to Succeed at Work and at Home”. America has a workaholic culture, he says. Mothers who put their families first eschew that culture, resulting in costs to their careers. But fathers who do so are violating both the workaholic culture and traditional gender norms.

Here’s the thing. Just because I enjoy being a dad does not make me flaky. It just means that I enjoy being a dad. We all make choices in our lives. I’ve chosen to eat dinner with my kids, attend their school conferences and events, haul gear to their concerts, and work the merch table for Norah’s band. Don’t get me wrong, I love being a lawyer. But, when I die, I’d much prefer my tombstone reads, “He was a great dad,” not, “He was a great lawyer.”

I’m a dad active in my kids’ lives. Yet, it doesn’t mean I’m any less dedicated to my job. It’s not an either/or proposition. You can be a good parent and a good employee. They are not mutually exclusive. So please don’t judge the quality of my work based on my commitment to my family. And please don’t call me flaky.

Here’s what I read this week:

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.”

Employee suicide is the next big workplace safety crisis

A recent headline at businessinsurance.com caught my eye:

Suicide seen as “next frontier” in workplace safety risks

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.

The numbers are stark and scary, and show a nation in the midst of a mental health crisis. What can employers do to recognize and mitigate this risk, and provide a safe workplace for employees in crisis?

The 14th nominee for the “worst employer of 2019” is … the horrible harasser

In its press release announcing a recently filed sexual harassment lawsuit, the EEOC says that a N.Y.-based housing development and property management company violated Title VII when its owner and top executive, repeatedly subjected female employees to crude sexual comments, called them sexually obscene names, and showed them pornography.

And, as bad as that sounds, that description barely scratches the surface of what is actually alleged to have happened in this workplace.

Parental discrimination claims pose big risks for employers

According to workingmother.com, More Parents Than Ever Are Suing Their Employers for Discrimination—and Winning. The article is right — parental discrimination claims (which are really just sex discrimination claims brought by working parents) are very dangerous for employers.

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:

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’d like to introduce everyone to the Don’t Hurt Anyone Project. Richard Cook created the nonprofit in response to “the toxic currents of racism, misogyny, xenophobia, homophobia, anti-Semitism, discrimination, harassment, inequity, and injustice … growing even stronger, wider, and deeper in today’s America and across the globe,” and “to be a voice for nonviolence, equity, justice, and civility.”

I’m a huge fan of Richard, his project, and their message.

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.

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.

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?

35 Employees Committed Suicide. Will Their Bosses Go to Jail?

WIRTW #559 (the “Happy Birthday D-Man” edition)

This guy turns 11 on Sunday.

Happy birthday Donovan! Please keep making us smile.

Here’s what I read the past two weeks.

Discrimination

• 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

HR & Employee Relations

• 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

Technology

• 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

Wage & Hour

• 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

Labor

• 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

OSHA & Safety

• 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

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.

Last night, at ESPN’s annual sports awards, the network honored Rob Mendez with its Jimmy V Award for Perseverance.

As compelling and inspiring as he and his story are, so was his acceptance speech last night.

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?

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.

In Boeing, 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).” It was a huge win for employers drafting and issuing workplace policies.

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.

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.

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.

There’s no such thing as “reverse” discrimination—it’s all just discrimination

According to the New York Post, a Caucasian 20-year veteran attorney for the Legal Aid Society is suing her former employer for race discrimination. Among other issues in her lawsuit, she claims that she was denied a lateral move “because of ‘diversity considerations.’”

Do you know that some courts impose a different, higher legal standard for discrimination against white employees than for discrimination against African-American employees?

Don’t forget about overtime pay when providing bonuses to non-exempt employees

Last week Chipotle announced a new bonus plan that could earn its employees up to an extra month of pay each year. Per the chain’s press release, the program is offered quarterly and can result in a bonus worth one week’s pay, calculated as an individual’s average weekly pay per quarter. To qualify for the quarterly bonus program, restaurant teams must meet certain sales and cash goals.

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.