WIRTW #409 (the “thank you” edition)

This morning I want to say a brief thank you to two organization, each of which hosted me to speak yesterday.

Yesterday morning, I presented Everything You Need to Know About Cyber Security (in 30 minutes). Thank you to local accounting firm Ciuni & Panichi for hosting me at its breakfast session, and a special thanks to Mike Klein for the invite and arranging the event.

Then, last evening I presenting Hot Employment Law Issues for 2016 to a group of HR professionals for ConnectedHR. Thank you to Mark D’Agostino, Connected’s President, for arranging the event and inviting me. It was the first time I’ve ever presented in a wine bar, and, moving forward, it should be the only venue in which I present.



Before we get to this week’s list of links, one more thank you to Walter Olson, who featured me in one of his posts at Overlawyered this week.

Here’s what I read this week.

Eye rolls might be passive-aggressive b.s., but they are not actionable harassment

Me: “Clean your room.”

Daughter: (rolls eyes)

Me: “Pick your clothes up off the bathroom floor.”

Daughter: (rolls eyes)

Me: “If you don’t like what I pack you for lunch, pack your own.”

Daughter: (rolls eyes)

Me: I’m not a huge fan of the age of almost 10. The pre-teen, I-know-everything, don’t-bother-me. Yes, I know it gets better, and, yes, I’m sure I was just as bad, if not worse (no comments from the Mom and Dad peanut gallery, please).

Eye rolls are annoying, passive-aggressive bulls---. But, are they actionable as sexual harassment?

No, you can’t make offensive videos about your co-workers, even with Legos

Since we’ve gone serious the last two days, I thought we’d go with the less-serious today. Watch this video, and then let’s talk.

Is it time for a new NLRB rule on handbook policies?

Last week, in William Beaumont Hosp. [pdf], the NLRB issued yet another decision holding that an employer’s work rules unreasonably infringed on employees’ rights to engage in protected concerted activity. Not newsworthy, right?

What is newsworthy, however, is that the lone Republican currently serving on the NLRB, Philip Miscimarra, used the decision as an opportunity to publish a scathing dissent calling for a complete re-write of the NLRB’s rules on employer policies and protected concerted activity.

The 18-page takedown is a must read for any employer frustrated with its inability to draft facially neutral, reasonably based work rules.

Are you ready for medical marijuana?

Sooner rather than later, medical marijuana will be a reality in Ohio. Currently, there are three separate efforts to enact this law: two ballot initiatives and one piece of legislation.

What does this mean for Ohio employers? Let’s start with the legislation, H.B. 523.

WIRTW #408 (the “jobs are all jobs and sometimes they suck” edition)

Ken had a surly fan last night. But when life gives him lemons, he makes memes.

A photo posted by Rhett Miller (@rhettmiller) on Apr 7, 2016 at 12:55pm PDT

Even rock stars have bad days at the office.

Ohio introduces paid-sick-leave legislation

There is little argument that the U.S. lags behind the rest of the civilized world on paid sick leave. As the federal government has failed to act on this issue for all but a small minority of federal-contractor employees, the state and local governments have started to pick up the slack.

Now, Ohio is considering getting in the game. H.B. 511—the Family and Medical Leave Insurance Benefits Act [pdf]—would, in essence, create state-administered short-term disability insurance for employees who need time off for an FMLA-covered reason.

8th Circuit rejects obesity as an ADA-protected disability

In a closely watched case, the 8th Circuit Court of Appeals, in Morriss v. BNSF Railway Co. [pdf], has rejected a claim that the ADA protects “obesity” as a disability.

What issues are on the NLRB’s radar? Be afraid.

If you want to know the legal issues that are on the NLRB’s radar, you need to look no further than NLRB General Counsel Memo 16-01 [pdf], which lists those categories of cases that “are of particular interest and would benefit from centralized consideration.” In other words, which cases must the NLRB’s regions submit to D.C. for charge-or-don’t-charge decisions?

Several areas defined as “initiatives and/or priorities” caught my attention, and should catch yours too:

Winter is coming … for the FLSA’s salary test

In case you’ve been living in the dark for the past year, the FLSA’s salary test is due for some changes, and the changes are coming soon. The latest intel suggests that the reguations—which will increase salary-level at which employees will qualify for the administrative, executive, professional, and computer employee exemptions from $23,660 per year (or $455 per week) to an expected $50,440 per year (or $970 per week)—will publish in July with an effective date in September.

Last week, the George Mason University’s Mercatus Center published a comperehensive analysis of why these new regulations will be detriemental to employers and employees. The report (pdf here, h/t Overlawyered) is well worth your time if you are interested in a solid analysis of the intended and unintended consequences of adding an estimated five million additional workers to the rolls of the non-exempt.

I’d like to focus on one such unintended consequence—lack of workplace flexibility.

WIRTW #407 (the “cumin” edition)

Name the two greatest characters in the history of television. Mine are Archie Bunker at number 1, and David Brent at number 1(a). While Arhcie Bunker will never again grace the world with his bon mots, thank god for Ricky Gervais, who is giving David Brent and all of his clueless uncomfortableness new life with an entire movie, the trailer for which was just released.

If you’ve never seen the original British verion of The Office, immediately go the Netflix and watch it all. It’s only seven hours (give or take) from start to finish. What are you waiting for? You’re at work, you say. Well, it is work related, right?

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

Huffington Post runs my bullying story

It started with a personal email from Arianna Huffington herself:

We would love to feature your voice on HuffPost on this important issue as it would resonate with many of our readers.

With that, my post about what employers and employees can learn from my son being bullied at school is now running on the Huffington Post, and I’m an official HuffPost blogger.

You can (re)read the story here: http://www.huffingtonpost.com/jon-hyman/when-schoolyard-bullies-b_b_9609884.html.

If you don’t mind doing me a solid, click on the link and share my story on your personal pages (Facebook, Twitter, etc.).

Ohio introduces unnecessary pregnancy legislation

Last week, the Pregnancy Reasonable Accommodation Act (S.B. 301) [pdf] was introduced in the Ohio Senate. The bill seeks to raise pregnancy to the level of a protected disability.

No matter what the producers of #Hamilton tell you, race is never a BFOQ

True confession time. I am not a fan of Hamilton. I don’t get it. Never have, never will. I will probably go to my grave having never seen what people tell me is the greatest thing to come to Broadway in the last few decades. And I’m perfectly okay with that.

I say this as prologue to today’s thought, which discusses this ad (h/t HuffPost), in which the producers of the Broadway seek “NON-WHITE men and women, ages 20s to 30s, for Broadway and upcoming Tours!”

An employer need not read minds about reasonable accomodations

The ADA’s interactive process is a two-way street. For an employee to present a valid ADA claim, the employee must actively participate in the reasonable-accommodation discussion. The employee cannot simply provide the employer a doctor’s excuse and then turn a deaf ear to the employer’s offers to accommodate.

Case in point? Agee v. Mercedes-Benz U.S. Int’l. (11th Cir. 3/30/16).

WIRTW #406 (the “April Fools” edition)

Happy April Fool’s Day.

Here’s what I read this week.

Do you understand your state’s wiretap law?

Here’s one you don’t see everyday. According to ESPN, the Los Angeles Lakers are peeved at one of their teammates, rookie D’Angelo Russell. So far, no big deal. That is, no big deal until you understand the cause of the rift. I’ll let ESPN take it from here.

Sources told ESPN.com that some teammates' trust in Russell is eroding after a video surfaced in the past week that shows Russell recording a private conversation between himself and teammate Nick Young. Young does not appear to realize he is being taped. The video, which is believed to have come to light last week via the Twitter account of a celebrity gossip site, shows Russell filming Young while asking questions about Young being with other women.

7 tips for employers, from your friendly neighborhood plaintiff lawyer

I found a blog post in which a plaintiff-side employment lawyer shared the 7 things employers don’t do, that they should be doing. The three that jumped off the page to me—

• “With every new potential client, I ask if they received a warning before being terminated. As soon as I hear ‘yes,’ it does slow us down in the march toward litigation.”

• “Juries expect some level of progressive discipline—they think it should be required.”

• “People don’t run to attorneys because they think they’ve got a great legal case. They come to see me because they’re angry about they way they were treated, especially on their way out.”

NLRB judge shoots down employee separation agreement as overly broad

Employers prefer finality when they pay an employee severance at the end of employment. One way employers sure up this finality is by obtaining a broad release of claims and covenant not to sue from the employee. But, that is not the only way. Employers use of variety of terms in separation agreements to try to ensure that the agreement is the last they will hear from the employee. That is, unless the employee runs to the NLRB, which seems to believe that there isn’t a policy that doesn’t violate the Board’s rules on protected concerted activity.

When schoolyard bullies become workplace bullies

This is Donovan.

He’s 7 years old. And he has Noonan Syndrome. Noonan Syndrome is genetic disorder caused by one of several genetic mutations. Donovan’s is of the PTPN11 gene. It is a multi-system disorder with an estimated prevalence of 1 in 1,000 – 2,500 births. In Donovan’s case, he has a bleeding (platelet function) disorder, a congenital heart defect (pulmonary valve stenosis), feeding and gastrointestinal issues (Celiac disease), ptosis of his right eye, small stature (for which he takes daily injections of growth hormones), and low-set ears.