Tuesday, October 25, 2016

Just because it might be legal doesn’t make it right


The plaintiff in Tennial v. UPS [pdf], a former UPS manager, claimed that his manager placed him on a performance improvement plan, and ultimately demoted him, because of his race. In support of this claim, he relied in part on: 1) his manager’s alleged use of the word “n*****” in referencing another, nonparty UPS employee, and (2) a district president’s use of the word “boys” in reference to Tennial’s black coworkers.

Monday, October 24, 2016

Lessons from a job interview


Last week, Steven Colbert conducted a mock job interview for President Obama. During the course of the interview, he asked the President questions that referred both to his age and the national origin of his birth.


Oops.

What lessons can employers learn from these few moments of late-night frivolity?

Friday, October 21, 2016

WIRTW #435 (the "spare time" edition)


How do you spend your down time? What do you do when you’re not working? Me? I blog, and I play roadie for Norah and Donovan. If you happen to work as an animator at Pixar, you craft emotionally compelling and visually stunning short animated films. Like this one.


Borrowed Time from Borrowed Time on Vimeo.

According to one of its two creators, Lou Hamou-Lhadj (the other is Andrew Coats), their “goal was as to make something that kind of contested the notion of animation being a genre, and one for children specifically. We really wanted to make something that was a little bit more adult in the thematic choices, and show that animation could be a medium to tell any sort of story.”

I’d say they hit it out of the park. 

Here’s what I read this week.

Thursday, October 20, 2016

Is social recruiting discriminatory?


Yesterday, I noted that the EEOC is examining the impact of “big data” on how employers reach employment decisions.

Looking at an issue and doing something about it, however, are two entirely different animals. I wonder what business the EEOC has looking at this issue at all. The EEOC’s mission is to eliminate discrimination from the workplace. Certainly, there is no claim that neutral data points intentionally or invidiously discriminate based on protected classes.

Wednesday, October 19, 2016

EEOC reiterates its enforcement priorities for the next four years


Earlier this week, the EEOC announced its updated Strategic Enforcement Plan for 2017 – 2021. So, what issues must employers have on their radar? From the EEOC’s press release:

Tuesday, October 18, 2016

OSHA publishes final rule on whistleblower complaints under the Affordable Care Act


As I’ve previously documented in this space, OSHA does a whole lot more than just regulate workplace safety. Its other responsibilities include enforcing the anti-retaliation whistleblower protections of a veritable alphabet soup of federal laws.

One such law is the Affordable Care Act (aka, Obamacare). And, just last week OSHA published its final rule on whistleblower complaints under the Affordable Care Act, available for download as a pdf here.

Monday, October 17, 2016

Billy Bush, harassment, and employer liability


Dan Rather, who is riding out the sunset of career interviewing musicians on Mark Cuban’s cable channel, also has been killing it lately on his Facebook page. He recently posted the following, tipping his hat to an article on The Huffington Post entitled, Dangerous Sycophants—Billy Bush in the Workplace:

Friday, October 14, 2016

WIRTW #434 (the "Fruity Tunes" edition)


In the name of equal time, I present the set from Donovan’s recent School of Rock performance. His band—Fruity Tunes—played a tight five song set, and even features Donovan taking some vocal responsibilities on Beck’s E-Pro.

While he’s still developing as a musician, there is no doubt that he loves the stage and performing. And, if the crowed leaves entertained, who cares if you miss a few notes here and there, right?


Here’s what I read this week.

Thursday, October 13, 2016

Lawsuit highlights the risk of unpaid training time


Employment Law 360 reports that Hawaiian Airlines has been sued by a group of employees claiming that their mandatory unpaid 10-day customer service training course violated the Fair Labor Standards Act.
According to court papers, trainees learned things like federal regulatory requirements and how to use a standard airline software system. … The suit claimed the Fair Labor Standards Act and state law required trainees be paid at least minimum wage “because, among other things, attendance was mandatory, the course material was related to the trainee’s job, and attendance was during regular working hours.”

Wednesday, October 12, 2016

Atoning for employers’ biggest sins #employmentsins


Today is Yom Kippur, the Jewish Day of Atonement, the day on which we make peace with God for all of the sins we’ve committed over the past year. On Rosh Hashanah God writes each person’s name in Book of Life. Over the next 10 days, Jews seek forgiveness for wrongs done against God and other human beings. During Yom Kippur, each individual makes their personal petitions to God, and hopes for forgiveness for the upcoming year. If all goes well, when God closes the Book of Life at the end of Yom Kippur, your name remains and your soul is safe for another year.

Tuesday, October 11, 2016

Court rules employers cannot take overtime credit for paid lunches


The Fair Labor Standards Act does not require paid lunches for employees. Indeed, quite to the contrary, the FLSA provides that meal breaks (presumptively defined as breaks of more than 20 minutes during which the employee is totally relieved of his or her work duties) can be unpaid.

What happens, however, to an employee’s overtime compensation if the employer pays an employee for non-working lunches? Is the employer entitled to use the extra compensation for the paid lunches to offset other overtime compensation?

Monday, October 10, 2016

From the archives: The art of the apology



I’ve been thinking all weekend whether to write about Donald Trump’s 2005 hot mic embarrassment, and, if so, what I’d write about. After all, I’ve already recently written about plagiarism and your b.s. meter in the wake of Melania Trump’s RNC speech, victim blaming sexual harassment victims in the wake of Donald Trump’s comments about his hope for his daughter’s reaction to workplace harassment, and, perhaps most critically, the importance of discourse in setting appropriate tones and modeling appropriate conduct in the workplace and beyond.

Then I saw Mr. Trump’s non-apology, and I had my theme.

Friday, October 7, 2016

WIRTW #433 (the "I feel love" edition)


Today, I thought I’d share some recent love the blog has received around the interweb.

First up, Feedspot’s Top 100 Legal Blogs, which ranks yours truly at number 34 overall, and the top labor and employment law blog.

Next, Northeast Ohio’s ERC, which included me on its recent list of the Best HR Blogs (as the lone legal blog).

Third, Justipedia, which lists me as one of the Top Employment/Labor Attorneys to Follow on Twitter.

Finally, The Expert Institute nominated the blog as one of 2016’s best litigation blogs. If you’re inclined, you can even jump over and vote to move me up the list.

Thank you to each of these resources for including me. Each contains a plethora of blogs and tweeters that are worth checking out. I know I found some new resources to follow, and I’m confident you will too.

Thursday, October 6, 2016

NLRB takes one on the chin in appellate decision


I am no fan of the NLRB and its aggressive agenda over the past few years. And, it appears I don’t stand alone.

Check out these scathing words from the D.C. Circuit Court of Appeals in Heartland Plymouth Court MI v. NLRB [pdf], in which the appellate court ordered the NLRB to pay the employer’s $17,649 in legal fees for the Board’s bad faith litigation by continuing to pursue a case that the NLRB knew it could not win. Why? Because the NLRB’s position ran counter to the law of every single appellate court.

Wednesday, October 5, 2016

Don’t ignore unpaid leaves as a reasonable accommodation


Two recent EEOC lawsuits (here and here) illustrate the risk employers continue to take when they deny unpaid leaves of absence to employees as a reasonable accommodation under the ADA.

http://dilbert.com/strip/2015-10-21

Tuesday, October 4, 2016

EEOC lawsuit highlights risk of dealing with prescription medications in the workplace


There is no doubt that prescription-pain-medication abuse is a rampant problem in America. Indeed, this week the State of Ohio even went so far as to limit the ability of an injured worker to receive reimbursements for pain meds from the state workers’ compensation fund.

So, what then does one make of this story from Employment Law 360, describing a recent lawsuit the EEOC filed against Georgia medical practice?

Monday, October 3, 2016

Why the DOL’s federal contractor paid sick leave rules matter for all employers


Last week, the Department of Labor rolled out its final regulations mandating paid sick leave for the employees of federal contractors. According to the DOL, Once fully implemented, more than one million employees of federal contractors will be covered. At the highest of levels, the rule mandates that covered workers earn up to 56 hours (7 work days) of paid sick leave annually. Notably, the rule does not apply retroactively, and only applies to new federal contracts and replacements for expiring contracts on or after January 1, 2017.


Friday, September 30, 2016

WIRTW #432 (the "Hotel Norha" edition)


This what one’s happy place looks like
Jack White month comes to an end with a few clips from Norah’s most excellent School of Rock “Many Shades of Jack White” show. She was asked to do a lot in this show. Of the 19 songs in the set, she sang lead on 9 (including Hotel Yorba, in which sang and played guitar), guitar on another, and background vocals on 3 more. That’s a .684 batting percentage, which is a whole bunch for a 10 year old to carry on her shoulders. And she totally killed it (not that I’m biased).

Two things stand out for me. First, I love when Norah gets to sing and play guitar simultaneously, which she did on one of my all time favorites, Hotel Yorba. Secondly, I love how Norah is no longer just on stage singing or playing some songs, but is transitioning into an entertainer, cognizant of the fact she is, in fact, putting on a show for an audience.

Judge for yourself. Here’s the best 14:03 from the shows.


Here’s what I read this week.

Thursday, September 29, 2016

Will OSHA’s new whistleblower rules invalidate your settlement agreement?


When an employer presents an agreement to an employee ancillary to the separation of that employee’s employment, or settles a claim asserted by an employee, part of the bargain for which the employer is paying is finality. Yet, over the past couple of years, the federal government has made this finality harder and harder to achieve.

Confidentiality, non-disparagement, and other “gag” provisions in employee separation and settlement agreements have been under attack by various federal agencies, including the EEOC and the NLRB. Now, OSHA also has joined the fray.

Wednesday, September 28, 2016

The most expensive bottle of orange juice ever


Today, I bring you a first for the blog. A magic trick. Read along as the EEOC transforms a $1.69 bottle of OJ into $277,565.

I’ll let the EEOC explain it’s own magic: