The attack on the NLRB's new joint-employer standard intensifies

Last week was a good week for opponents of the NLRB’s new, and more liberal, joint-employer standard, announced last summer in Browning-Ferris Industries of Calif. 

WIRTW #418 (the #OneForTheLand edition)

I couldn’t see much at Wednesday’s Cavs victory parade. A late start + 1.3 million people + an unwillingness to wade into the masses = soaking in the atmosphere on the periphery.

Consequently, this was the best thing I saw at the parade. Cleveland proud!

A video posted by Jon Hyman (@jonhyman) on Jun 22, 2016 at 2:04pm PDT

Here’s what I read this week:

Don’t forget about confidentiality when training your employees on social media

I’m not getting Snapchat. Maybe I’ve finally found a social channel that doesn’t fit me. Or, maybe I’m just too late to the game. Or, maybe with Twitter, and LinkedIn, and Facebook, and Instagram, and this blog, I don’t have the time or attention for one more social channel.

You know who does get Snapchat? Apparently some staffers of Australia’s Labor Party, who snapped some screens of their party’s confidential campaign strategy.

EEOC pushes NLRB to find common ground on workplace harassment

It’s no secret that I’m not a fan of the NLRB’s expanded coverage of protected concerted activity. One area over which I’ve been particularly critical is the NLRB’s position on the confidentiality of workplace investigations and workplace civility policies.

Now, the EEOC has also taken up the challenge.

On LeBron James and boomerang employees

LeBron James is the world’s greatest boomerang employee. He left Cleveland for Miami in 2010, returned in 2014, and delivered The Land our promised title on June 19, 2016.

What is a boomerang employee?
 

We are the Champions!

Cleveland wakes up the this morning basketball champions of the world. While I’m not a native Clevelander, I’ve lived here long enough to understand the pain and suffering of my town. I’ve been here for the Indians in ‘95 and ‘97, the return and floundering of the Browns, the Cavs in ‘07, the Decision, the Return, and last year’s (valiant but still a) defeat. And last night I celebrated with my family and cried tears of joy as I watched the Cavs complete what most thought was not possible — not only beating the defending champs and the team who won more regular-season games than any other in history, but also doing so after being down 3-1 and having to win two on their home floor.

WIRTW #417 (the “virgin” edition)

That time your boss caught you sleeping at work and took a selfie with you.

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

EEOC on pregnancy-related limitations and restrictions at work

It’s been nearly a year since the EEOC updated its administrative guidance on pregnancy discrimination to account for the Supreme Court’s holding in Young v. UPS regarding an employer’s obligations to accommodate its pregnant workers.

In case the EEOC’s guidance is too dense for you to digest, the agency has chosen to commemorate its participation in the White House United State of Women Summit with the publication of two new pregnancy-related resources.

12 mistakes employers make in paying non-exempt workers

Given that on December 1, 4.2 million exempt workers will transition to non-exempt status, it is timely that the Richmond Times-Dispatch though to share 9 mistakes employers make in paying hourly/non-exempt workers. I’ve added numbers 10, 11, and 12.

Philip Miscimarra is mad as hell, and you should be too!

NLRB Member Philip Miscimarra is mad as hell about the Board’s current position on employee-handbook policies and protected concerted activity, and he’s not gonna to take this anymore.

6th Circuit says illegal retaliation doesn’t meet threshold for constructive discharge. Wait, what?!

Henry v. Abbott Laboratories (6/10/16) [pdf] is what I would call a curious case, and one that I plan to liberally use any time I’m defending a case in which claims both of discrimination/retaliation and constructive discharge are asserted.

WIRTW #416 (the “420”) edition

Earlier this week, Governor Kasich legalized medical marijuana in Ohio. The law takes effect in early September. Ohio becomes the 25th state to enact a comprehensive legal medical marijuana program.

The law will allow people with the following medical conditions to use marijuana: HIV/AIDS, amyotrophic lateral sclerosis (ALS), Alzheimer’s disease, cancer, chronic traumatic encephalopathy (CTE), Crohn’s disease, epilepsy or another seizure disorder, fibromyalgia, glaucoma, hepatitis C, inflammatory bowel disease, multiple sclerosis, pain that is either chronic and severe or intractable, Parkinson’s disease, post-traumatic stress disorder, sickle cell anemia, spinal cord disease or injury, Tourette’s syndrome, traumatic brain injury, and ulcerative colitis.

Importantly, employers retain the right to fire medical marijuana users if the use violates a drug-free workplace or zero tolerance policy.

For more on what this means for Ohio employers, click here.

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

D.C. Office of Human Rights publishes best practices guide for employers on transgender rights

The District of Columbia Office of Human Rights, in connection with the National LGBTQ Task Force, recently published a 19-page best practices guide for employers on transgender issues in the workplace. The document, entitled, Valuing Transgender Applicants & Employees: A Best Practices Guide for Employers [pdf], when taken together with earlier guidance from the EEOC on transgender bathroom access and broader guidance from the EEOC on LGBT discrimination continues to signal that issue is one that you can no longer ignore.

Are ban-the-box laws actually causing more racial discrimination?

I read with great interest an article on vox.com, entitled, “Ban the box” might just replace one kind of discrimination with another. The article discusses two recent studies, one by The Brookings Institution and the other by the University of Chicago, both of which concluded that ban-the-box laws have the unintended consequence of causing more discrimination against minorities, not less:

What you need to know about EEOC’s proposed national-origin-discrimination guidance

I had a post prepared in my brain about the EEOC’s recently published proposed Enforcement Guidance on National Origin Discrimination. And then Robin Shea beat me to the punch. So, instead of recreating the wheel, I am instead directing you to her always excellent Employment & Labor Insider blog, where she shares 25 quick takes (no kidding!) on the EEOC’s proposed guidance.

A dramatic retelling of an NLRB protected concerted activity decision

Last week, the NLRB decided Dalton Schools, Inc. [pdf], in which the Board unanimously determined that a private school unlawfully terminated one of its teachers for engaging in certain protected concerted activity—complaints about how the school handled its annual musical production.

In the spirit of the decision, I present a dramatic retelling of the case, in five acts.

WIRTW #415 (the “CB + TMR = 😊”) edition

That time you walked into Third Man Records before the Courtney Barnett show and ran into Courtney Barnett.

A photo posted by Jon Hyman (@jonhyman) on May 31, 2016 at 3:30pm PDT

My daughter leads a charmed life. As one friend put it, “She’s going to think she gets to meet the band at every show she goes to. When does Sir Paul come to town?”

On a serious note, it was truly special to Norah that CB took the time to speak to her on Tuesday. I hold my breath every time she meets one of her idols. Each meeting is an opportunity for her to learn (at the tender age of 10) about grace and humility in the face of fame (or otherwise), and CB certainly did not disappoint. Norah absolutely loved the concert, but meeting Courtney Barnett was the highlight of her trip (edging out spending time with dear ol’ dad).

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

You have the right to replace striking workers, right?

Labor unions and the employees they represent have the right to strike. To combat the economic pressure of that labor stoppage, employers have long held the right to permanently replace those striking employees with replacement workers. Or, at least employers had that right.

Earlier this week, in American Baptist Homes of the West [pdf], the NLRB severely restricted the rights of employers to hire permanent replacements by holding that an employer violated the National Labor Relations Act if if permanently replaces striking employees for the purpose “to punish the strikers and the Union and to avoid future strikes.”

7th Circuit surprises by siding with NLRB on arbitration agreements

It’s been two and a half years since the 5th Circuit, in D.R. Horton, rebuked the NLRB’s prohibition on mandatory arbitration clauses. Since, however, the NLRB has been undeterred, finding, in case after case, that employers’ mandatory arbitration agreements (with and without class-action waivers) violate employees’ rights to engage in protected concerted activity under section 7 of the National Labor Relations Act.

Thus, when I heard that the traditionally business friendly 7th Circuit would be taking up the same issue, I figured the NLRB would go 0 – 2 in the federal courts of appeals on this issue. Boy was my prognostication radar off.

Why aren’t you training your employees on cyber security?

A recent cyber-security survey conducted by the Ponemon Institute and Experian has some startling results for employers. According to the survey, Managing Insider Risk through Training & Culture [pdf]: