WIRTW #399 (the “happy” edition)

So we’re in the car Wednesday night, and I mention to the fam that I’m excited because, today, a new Starbucks is opening downstairs from my office. Without missing a beat, and with complete sincerity, Donovan, my 7-year-old, says, “Oh dad, I’m so happy for you.” I love my kids.

Here’s the rest of what I read this week:

Can an employer prohibit an employee from job hunting during FMLA leave?

Earlier this week, an employee out on FMLA leave posed the following question to the Evil HR Lady:

While I am out for surgery, I was informed of a new job in another hospital. It looks like no one has applied for the position.… Can I apply for this job while I am on leave? What is the consequence of doing so? Can they take my pay back? On one of the FMLA paperwork, it states no job hunting while on FMLA. Is that true? I do not want to be in some legal battle.

Now is the time to restore balance to Ohio’s employment discrimination law: Endorsing the Employment Law Uniformity Act

For lack of more artful description, Ohio’s employment discrimination law is a mess. It exposes employers to claims for up to six years, renders managers and supervisors personally liable for discrimination, contains no less than four different ways for employees to file age discrimination claims (each with different remedies and filing deadlines), and omits any filing prerequisites with the state civil rights agency.

Monday, State Senator Bill Seitz introduced Senate Bill 268 [pdf], the Employment Law Uniformity Act. It is a business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.

The top 10 mistakes employers keep repeating

Today is Groundhog Day, which, because of the eponymous Bill Murray movie, has become synonymous with repeating the same mistakes over, and over, and over…

In that spirit, I thought we’d take a look at the 10 biggest mistakes that employers keep making.

In no particular order:

EEOC proposed significant pay equality changes to EEO-1

If your company has 100 or more employees, you should be very familiar with the federal government’s EEO-1 survey. The EEOC requires that you annually complete and file this form, which requests demographic on your employees, broken down by protected classes and job categories.

Last Friday, the White House made a game changing announcement about the information it proposes you submit in your EEO-1 filings.

WIRTW #398 (the “doorbell” edition)

Someday, Donovan will comb through the archives of this blog and ask, “Dad, you sure wrote a lot about Norah’s music. What about mine?”

So, in the name of equal time and equal pride, I bring you Zombie Fried Chicken, with Donovan on keys (and big sis on drums), doing the White Stripes “My Doorbell.” (Donovan’s song intro, by the way, was totally spontaneous and improvised, and purely adorable).


Here’s the rest of what I read this week:

Consensus starting to form around reasonable reporting rules for off-the-clock overtime pay

It’s been a few years since the 6th Circuit held, in White v. Baptist Memorial Hosp., that an employer is not liable for unpaid overtime if the employee fails to follow an established, reasonable process for to report uncompensated work time.

Yesterday, following the logic of White, the 5th Circuit reached a similar conclusion:

Guest Post: Social Business and HR, Part 2

By Mike Wise

First, thanks again to Jon Hyman for the chance to write on a different but related topic – Social Business. As I mentioned in Part 1, I’m finding that a surprisingly high percentage of HR folks have not yet tapped into the incredible power of the Social Web. Perhaps this series will be helpful, at least at a high level. Feel free to question or comment in the Disqus form at the end of the post.

In Part 1 of this 3-part series on Social Business, the subject was Online Reputation Management. In this Part 2, the focus will be on Social Business and Internal Communications. We will finish the series in Part 3 with a look at the 3 R’s - Recruiting, Recognition, and Retention and how Social Business amplifies those efforts.

DOL doubles down on joint employment under the FMLA

Yesterday, we looked at the DOL’s recent guidance on joint employment under the Fair Labor Standards Act. Simultaneously with its FLSA guidance, the DOL also published guidance on joint employment under the FMLA, and it’s definitely worth you time.

The federal assault on joint employment continues

First it was the NLRB. Next it was OSHA. Now, the Department of Labor’s Wage and Hour Division is taking its turn cracking down on joint employment.

Last week, the WHD launched a microsite entitled, Joint Employment under the FLSA. Most notably, this site included the publication a new Administrator’s Interpretation, which picks up the NLRB’s liberalized joint employer standard by relying on indirect or potential control, in addition to actual control, as the lynchpin of joint employment.

WIRTW #397 (the “Woodstock” edition)

I'm well aware that I write a lot about my daughter’s music, but I do so because (a) I know a lot you enjoy it, and (b) I’m a really proud dad. Today, I’m doing so again, because last Saturday Norah blew me away. Her “Psychedelic 60s” show closed with the Jefferson Airplane classic “Somebody to Love”, with Norah absolutely killing it on lead vocals.


You have another chance to catch the show live, tomorrow at the Music Box Supper Club. Norah’s band takes the stage at 1 pm, and the show is free.

Here’s the rest of what I read this week:

SCOTUS calls a balk on attempted class-action pick-offs

It’s been almost three years since the Supreme Court decided, in Genesis HealthCare Corp. v. Symczyk, that an employer moots an FLSA collective action when the named plaintiff rejects an offer of judgment that would have satisfied all of the claims brought in the case.

Or did it?

Appellate court reinstates sex-discrimination claim of transgendered worker

A federal appellate court reinstated the sex-discrimination claim of a transgender auto mechanic. Credit Nation Auto Sales fired Jennifer Chavez less than three months after she notified it of her gender transition.

The employer argued that it fired her because it caught her sleeping in a customer’s vehicle while on the clock. Even though the court concluded that the employer’s reason was “true and legitimate”, it nevertheless reversed the trial court’s dismissal of the sex-discrimination claim.

NLRB continues to slam employers on mandatory arbitration clauses

Last week, the Huffington Post reported that Guitar Center was requiring all of its employees to choose between signing arbitration agreements or losing their jobs.

I have been critical of employers’ use of arbitration agreements because I do not believe that they provide employers with a quicker, cheaper, and less risky alternative to a judicial resolution of employment disputes.

The NLRB is also highly critical of arbitration agreements, but for a wholly different reason. The NLRB believes that such clauses unlawfully infringe on the rights of employees to engage in protected concerted activity.

WIRTW #396 (the “walking dead”) edition

I love the creativity of children, mine or otherwise. Donovan can’t recall which of his bandmates came up with the name for his Rock 101 band (performing two free shows at the Music Box Super Club — Jan. 16 @ 2:30 and Jan. 23 @ 1:00), and it’s too good not to share: Zombie Fried Chicken.

There are bands everywhere that wish they had thought of the name first. Too bad, it’s taken.

Here’s the rest of what I read this week:

Ohio court muddles the issue of counterclaims-as-retaliation

Friedrich Nietzsche once said, “It is impossible to suffer without making someone pay for it; every complaint already contains revenge.” Litigation, however, is no place for revenge. The question I am most asked by clients after they are sued, besides, “How much is this going to cost me,” and “After I win I can collect my attorneys’ fees from that bastard,” is, “How do I countersue that bastard for _________?”

A recent Ohio appellate decision will, unfortunately, muddle the answer to this question.

OSHA now thinks that it can cite facilities it hasn’t even visited

Central Transport operates trucking terminals around the country. As a result of OSHA’s investigation of one facility in Massachusetts, the agency fined the company $330,800 for violations relating to powered industrial trucks. That, in and of itself, is not that remarkable. What OSHA did next, however, should cause your head to spin.

EEOC stakes its turf on the issue of sexual orientation discrimination

As I thought of which David Bowie song to support today’s effort, the one that leapt to mind is “Space Oddity” (I was going to use “Changes”, but Dan Schwartz already claimed it for his post yesterday).

To me, it is a complete oddity that, in the 2016, it is still statutorily legal for an employer to fire an employee because of that employee’s sexual orientation. On this point, the EEOC and I see eye-to-eye. The difference, however, is that the EEOC is in a position do so something about it. What it is not doing is sitting around and waiting for Congress to do something about it.

Employers feeling good about win in EEOC wellness case

Nine months ago, the EEOC published proposed regulations detailing how and when employers can maintain wellness incentives for employees under group health plans without running afoul of the ADA’s voluntariness requirements for medical exams.

In the closing minutes of 2015, a Wisconsin federal court issued an opinion in one of the first lawsuits filed by the EEOC that had challenged an employer wellness program as an ADA violation. The resulting victory for the employer may cause the EEOC to rethink its wellness-incentive strategy.

WIRTW #395 (the “rock 'n' roll grade school” edition)

It’s been a bit since I’ve shared any music from Norah’s gigs, so I thought I’d share a clip of three songs from her show last weekend (blue hair and all) with the School of Rock Jr. Headliners.


As for Norah’s bands, you have a few opportunities to see them live over the next few weeks (with more to be added):

• Jan. 16, Norah’s Psychedelic 60s show takes the stage at the Music Box Supper Club, beginning a 3 pm, with a short set by Donovan’s Rock 101 band leading off at 2:30.
• Jan. 23, Norah’s Psychedelic 60s show again performs at the Music Box Supper Club, beginning a 1 pm, followed by Donovan’s Rock 101 band at 2:30.
• Feb. 7, the School of Rock Jr. Headliners continue their monthly residency at Coda, in a pre-Superbowl show from 1 – 4.
• Feb. 13, the Jr. Headliners play the Tri-C High School Rock-Off Finals, on the main stage at the Rock & Roll Hall of Fame.

Here’s the rest of what I read this week: