Are you sure you want to take that case to trial?

Consider Locigno v. 425 West Bagley, Inc. [pdf], decided last week by an Ohio appellate court.

This case is remarkable. Because of some odd communications between a juror and the court, the concurring opinion gives a unique look behind the curtain of jury deliberations. And it isn’t pretty.

WIRTW #431 (the “stop breaking down” edition)

Last Saturday was Jack White show #1 for Norah and her School of Rock friends. One of my personal highlights was Norah singing The White Stripes’s cover of the Robert Johnson 1937 blues classic, “Stop Breaking Down”.

A video posted by Jon Hyman (@jonhyman) on Sep 17, 2016 at 6:04pm PDT

Show # 2 is this Sunday, September 25, at 12 pm, Brothers Lounge,11609 Detroit Ave., Cleveland. As always, stop and say hi, and I’ll buy you a beer.

Here’s what I read this week:

Yes, these are my readers

It’s rare that I write a same-day follow-up post, but an email I received from a reader in response to this morning’s post merits special attention.

The email read as follows:

Your article on why your son hates Donald Trump is way off base. I think it exemplifies why you have not adequately informed your son on the facts such as she could always come here on a tourist visa….. Educate your son and let him know that part of the reason for Trump’s stance on ILLEGAL immigration is because one day an Illegal Immigrant just might take the job he wants to earn more money.

This was my response:

He’s 8, and while brilliant (the apple not falling far from the tree), I think the nuances of immigration policy might be a bit much for him. Besides, we start our policy discussions in the Hyman house with nuclear proliferation. Immigration policy isn’t until he turns 10.

I’m going to assume I now have one less reader, and that’s perfectly fine by me.

Discourse matters

My eight-year-old son hates Donald Trump. I know hate is a strong word. I rarely use it (except when describing the most evil of all condiments, mustard. I hate mustard).

But, Donovan hates Donald Trump. All you have to do is mention his name, and he will tell you how much he hates the Donald, and how he has no room in his life for anyone who thinks any differently.

Over the months of listening to our son tell us of his hatred for Trump we never thought to ask why. Until we did.

When is December 1 not December 1? When two lawsuits challenge the new overtime rules.

On December 1, the Department of Labor’s new salary test for exempt employees is set to take effect, raising the salary level to qualify for certain white collar overtime exemptions from $455 per week to $913 per week.

That is, it is set to take effect if the two lawsuits filed yesterday don’t delay or outright stop the rules from taking effect.

Regulating social media at work is a Sisyphean task

According to Ajilon (as reported by BenefitsPro), American employees spend 140 per year (or an average of 33 minutes per day) on Facebook, Twitter, Instagram and other social networks. Aggregated across all employees, the survey estimates this personal time costs employers $192.4 billion each year.

These numbers, however, merely beg the questions — (1) should you care and (2) what can you do about it?

11th circuit decision on dreadlocks and race asks big questions on the meaning of discrimination

In EEOC v. Catastrophe Management Solutions [pdf], the EEOC asked the 11th Circuit to determine whether banning an African-American employee from wearing dreadlocks constitutes race discrimination.

In a lengthy decision that discusses the very concept of race, the court answered the question “no”.

WIRTW #430 (the “third man” edition)

I have officially dubbed September Jack White Month in the Hyman house. I’ve never hid my love of all things Jack White. So, when the same month brings us the release of Jack White – Acoustic Recordings 1998-2016, a live Tonight Show performance, and my daughter performing in an all Jack White show (9/17 @ 2:30 and 9/25 @ noon, Brothers Lounge, mention this blog and your beers are on me) what's not to love?

Here’s what I read this week:

The NLRB is now basically creating unfair labor practices out of thin air

Image via forbes.com

Those that have been readers for awhile know of my dislike of the NLRB’s expansion of its doctrine of protected concerted activity (e.g., here and here).

The latest on the NLRB’s hit list: employee mis-classifications. The NLRB has concluded that an employer has committed an unfair labor practice and violated an employee’s section 7 rights by (mis)classifying its employees as independent contractors. Or so was the Board’s conclusion in its recently published General Counsel Advice Memorandum [pdf].

When it’s better to be lucky than good

Employers, sometimes it is better to be lucky than to be good. Case in point? Graves v. Dayton Gastroenterology [pdf], decided yesterday by the 6th Circuit.

Our employment discrimination laws are not a pretense

Last week, the 6th Circuit decided Richardson v. Wal-Mart Stores [pdf], a fairly run of the mill age discrimination lawsuit. The court decided that Richardson had failed to establish that Wal-Mart’s reason for firing her—a two-year history of disciplinary warnings—was pretext for age discrimination.

What caught my interest was not the decision itself, but instead the following statement made by the plaintiff’s attorney to Employment Law 360 about the decision:

The unfortunate reality is that anti-employment discrimination laws have largely become a pretense in the U.S. These laws remain on the books; but many courts rarely enforce them.

Forced retirement is an age discrimination no-no

Image credit: slate.com

The EEOC has sued a Colorado hospital for age discrimination. The key allegation? That it forced employees to resign because of their age. The lawsuit claims hospital managers made ageist comments, including that younger nurses could “dance around the older nurses” and that they preferred younger and “fresher” nurses.

According to Phoenix District EEOC Regional Attorney Mary Jo O’Neill, “Research shows that pervasive stereotypes about older workers still persist—for example, there are widespread stereotypes that older workers are less motivated, flexible, or trusting and that a younger workforce is preferable. These stereotypes are flatly untrue and must be recognized for what they are—prejudice and false assumptions.”

WIRTW #429 (the "top 10" edition)

Blame it on the Labor Day holiday and the resulting short work week, but the labor and employment news has been a bit scarce this week. So, instead of my usual categorical breakdown of the week’s best posts, I am listing them as a (sort of) top 10.

Here are the top ten labor and employment law posts from this past week (not written by me, and not really in any particular order):

Free Speech, Social Media, and Your Job

One of the biggest misconceptions that employees hold is that the First Amendment grants them free speech rights in a private workplace. Quite to the contrary, the First Amendment right to free speech grants private-sector employees zero constitutional rights or protections.

Today, I bring you a guest post by Ellen Gipko of HubShout, which takes a deep look at this important issue, with a special focus on online speech and social media.

Fox Settles Sexual Harassment Suit with Gretchen Carlson

What do you get when you add a high profile sexual harassment suit, a highly compensated employee, and a well known target?

$20 million.

That is the number that Gretchen Carlson is receiving in settlement of her sexual harassment lawsuit against her former boss, deposed Fox News chief Roger Ailes.

Associational disability discrimination claims are rare, yet dangerous

I have been blessed with employers that are sympathetic to the fact that my son was born with some life-long medical issues. I’ve never had an issue taking time for a doctor’s appointment, or an unexpected illness, or the three weeks he spent inpatient at the Cleveland Clinic five (very) long years ago.

Some employees aren’t so lucky.

WIRTW #428 (the “science is fun” edition)

I never thought I’d be the parent of private school kids. I am a proud survivor of the School District of Philadelphia, and always assumed that my kids would also attend public school. Then we found Lake Ridge Academy. Without sounding like too much of an advertisement for the school, it was the best decision and investment we made for our family.

Case in point — the fifth grade starts every school year with an overnight science trip to Stone Lab, an Ohio State teaching and research lab on Lake Erie. They study marine life, fish (and dissect fish), otherwise explore nature, and bond. Norah reports that she’s been looking forward to the experience since, as a kindergartener five years ago, she saw the fifth graders leaving with their overnight bags. By the looks of things, she’s not disappointed with the experience.

We made the 10:30 ferry! #millerboatline #learningisfun #stonelab pic.twitter.com/OCDmrJc0D9

— LS Technology (@LRATechnology) September 1, 2016

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

The ADA and prescription meds: what you need to know

Can an employer include prescription medications in its drug screening of job applicants and employees? Here’s a good lawyer answer for you. It depends.

Last week, the EEOC announced that it had sued an Arizona car dealership for disability discrimination after it rescinded a job offer when a pre-employment drug test revealed a prescription drug used to treat a disability.

Did the NLRB do more harm than good by permitting teaching and research assistants to organize?

Last week, in Trustees of Columbia University [pdf], the National Labor Relations Board upended decades of precedent by holding that federal labor law covers graduate and undergraduate teaching assistants, and graduate research assistants. This case has received wide spread national coverage (such as here and here). It is academically and politically interesting, and worth your time to read even if your business doesn’t involve academia. Moreover, the Board’s willingness to so easily depart from such well established precedent should be troubling to all employers.

The aspect of the decision I want to focus on in Member Miscimarra’s dissent, specifically his argument that because of the NLRB’s recent super-expansion of the doctrine of protected concerted activity, this decision will harm the very students it intends to protect. 

What employers can learn from EEOC's new Enforcement Guidance on Retaliation

Yesterday, the EEOC published its final Enforcement Guidance on Retaliation and Related Issues. It’s the agency’s first formal guidance on this issue since 1998, and was long overdue. After all, according to EEOC Chair Jenny R. Yang, “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.” She adds, “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”