WIRTW #448 (the “promo” edition)

On February 22, I will be co-presenting a free CLE-eligible webinar for LexisNexis, entitled, “Employment Law: Five Areas to Watch in 2017.” The webinar runs from 2 - 3:35 pm EST.

My topics are LGBT discrimination claims and NLRB for non-union companies. I will also chime in on the other three topics (wage-and-hour, FMLA, and cyber security). It promises be be an excellent event.

Did I mention it’s free? Registration is open and available here.

Here’s what I read this week:

“It’s not fair”

Watch this, and then let’s talk about the word fair.

Is your company protected from insider cyber threats?

I’ve previously suggested that your employees are your company’s weakest link, and therefore, your greatest threat to suffering a cyber-attack and resulting data breach. While employee negligence (that is, employees not knowing or understanding how their actions risk your company’s data security) remains the biggest cyber risk, another is growing and also demands your attention—the malicious insider.

Dark Reading reports on a recent survey, entitled, “Monetizing the Insider: The Growing Symbiosis of Insiders and the Dark Web.”

How to defend *not* granting leave as a reasonable accommodation

Medical leaves of absence continue to confound employers. Under the ADA, an employer must consider an unpaid leave as a reasonable accommodation. An unpaid leave of some limited duration, however, will be reasonable in most cases.

When is an employer free to deny an employee’s request for a leave as an ADA accommodation? Let’s examine Williams v. AT&T Mobility Services (6th Cir. 1/27/17) for an answer.

The 3rd nominee for the “worst employer of 2017” is … the direct discriminator

Our next nominee for the Worst Employer of 2017 is the defendant in Mayes v. WinCo Holdings (9th Cir. 2/3/17) [pdf]—WinCo, a Bosie, Idaho, supermarket chain.

The plaintiff, Katie Mayes, a night-shift supervisor, was fired for taking a stale cake from the store bakery to share with fellow employees after management allegedly gave her permission to do so. That, however, is not what earned WinCo the nomination. Instead, it’s what the court found Mayes’s direct supervisor expressed about her (yes, her) belief about a woman running the night-shift:

WIRTW #447 (the “Gorsuch” edition)

Did you hear that Donald Trump appointed 10th Circuit Court of Appeal Judge Neil Gorsuch to fill to SCOTUS seat vacated by the death of Antonin Scalia? What have some of my blogging friends had to say about this appointment? Glad you asked.

• Gorsuch’s extra-judicial writing and speeches — via SCOTUSblog
• What President Trump’s Supreme Court Nominee Means for Employment Law Cases — via Jason Shinn’s Michigan Employment Law Advisor
• I wonder how Trump’s nominee, Neil Gorsuch, might decide a SCOTUS leave-accommodation ADA case. — via Eric Meyer’s The Employer Handbook Blog
• SCOTUS Nominee ‘Excellent’ Choice for Employers — via HR Daily Advisor
• Daily Trumpdate: Gorsuch seems to care about real people — via Robin Shea’s Employment & Labor Insider
• Judge Gorsuch is not Friendly to U.S. Workers — via San Antonio Employment Law Blog
• Where Does Gorsuch Stand on Tech and the Law? — via Technologist

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

Ohio again tries to restore sanity to its bonkers employment discrimination law

It was almost one year ago to the day that I penned, Now is the time to restore balance to Ohio’s employment discrimination law: Endorsing the Employment Law Uniformity Act. I wrote:

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.

Last year’s attempt at this sanity restoration, Senate Bill 268, died at the end of 2016 with the expiration of the last legislative session.

Thankfully, however, House Bill 2 has resurrected this attempt. (And, yes, the irony that today is Groundhog Day is not lost on me.)

Does the FLSA cover unpaid “gap time”?

As we all should know, the Fair Labor Standards Act requires that employers pay non-exempt employees overtime at a rate of one and one-half times the regular rate of pay for any hours worked in excess of 40 in any given work week. And, it provides a remedy for an employee to sue for unpaid overtime (among other remedies).

What about gap time? “What is gap time,” you ask? It’s employment-law speak for unpaid straight time. Does the FLSA authorize a court to provide a remedy for unpaid straight time (for example, off-the-clock work that does not break the 40-hour weekly threshold)? Or, does the FLSA only authorize back pay for unpaid overtime?

Unions membership is up in Ohio; is your business prepared?

Union membership numbers for 2016 are out, and while most employers should be encouraged, Ohio employers might think otherwise.

In Ohio, the percentage of workers belonging to unions is at 12.4 percent, up 0.1 percent from 2015. Nationally, union membership sits at 10.7 percent, down 0.4 percent from 2015. In other words, Ohio’s union representation is both greater than, and growing faster than, the national average.

Trump’s un-American travel ban and the workplace

I’ve had an internal debate all weekend long over whether I should blog about Trump’s executive order that that bans immigration from seven Muslim countries, suspends refugees for 120 days, and bars all Syrian refugees indefinitely. Ultimately, I decided that if you are not part of the solution you are part of the problem, and this issue is too important to remain silent. I choose to be on the correct side of history.

If you are a staunch defender of the President who does not care to read an opposing view, I suggest you stop reading now, and come back tomorrow for a more benign post. Or, better yet, post a comment and let’s have an intelligent debate about this issue. And, if you choose to unfollow or unfriend me because of my opinion, you are more than welcome to do that too. This is still America, and I respect your right to have an opinion even if I disagree with it. I hope, however, that you show me and my opinion the same respect and patriotism that I would show you and yours.

WIRTW #446 (the “I wish I wrote that” edition)

Every now and again, someone writes a blog post that I wish I had written. This week brought us one such post.

• Could “The Last Jedi” Actually Be Practicing Religion in Your Workplace? | Connecticut Employment Law Blog — via Dan Schwartz’s Connecticut Employment Law Blog

For what it’s worth, I titled Dan’s post better than he did:

The headline to my blog post that I WISH I had written. https://t.co/AsgqvhEmFF

— Dan Schwartz (@danielschwartz) January 24, 2017

These aren’t the Title VII claims you’re looking for #EpisodeVIII #TheLastJedi @starwars https://t.co/fxQImbF6u1

— Jon Hyman (@jonhyman) January 24, 2017

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In other news, this week President Trump named Philip Miscimarra acting head of the National Labor Relations Board. Here are three reasons employers should rejoice at this appointment.

• Philip Miscimarra is mad as hell, and you should be too!
• Is it time for a new NLRB rule on handbook policies?
• Did the NLRB do more harm than good by permitting teaching and research assistants to organize?

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Here’s what else I read this week:

The 2nd nominee for the “worst employer of 2017” is … the recorded retaliator

Our next nominee for the Worst Employer of 2017 comes from my very own backyard—Cleveland Hopkins International Airport.

Here in Northeast Ohio  take our snow removal very seriously, especially (we hope) at the airport, where an icy or snow-covered runway could cause disaster. In 2015, airfield manager Abdul Malik-Al complained to his bosses about his belief that the airport did not sufficiently support its winter-weather crews. Those comments led to the FAA levying a $200,000 fine against the airport.

Make password security a priority for your employees in 2017

Do you know the top 10 passwords used to “secure” enterprise-connected devices in 2016? Sadly and unsurprisingly, here they are, along with how long it would take it would take a computer to crack each (and hack into said device and network):

Andrew Puzder’s view of women should disqualify him as Secretary of Labor

On Saturday, millions worldwide (2.6 million, according to USA Today) marched for women’s rights. On February 2, the Senate Health, Education, Labor and Pensions committee will hold its confirmation hearing for Labor Secretary nominee Andrew Puzder.

“What does one have to do with the other,” you ask? Consider this—

On the news: Hyman on reckless employee tweets and our new President

Last Thursday morning I received a call from Mike Brookbank, a reporter for WEWS, our local ABC affiliate. “I saw your quotes on Money.com on how to post on social media about President Trump without losing your job. I’m pitching a similar story for tonight’s news. Care to be interviewed?”

WIRTW #445 (the “dynamic duo” edition)

Last weekend was School of Rock weekend for the Hyman family. My kids showed a packed club what they’ve been working on for the past four months.

Norah never disappoints when she performs (or in life, for that matter). Some 10 year old girls play sports, some dance, some cheer ... mine just kicks ass.

Witness the power of a three-song selection from her Power Trios show, about which I heard whispers was one the best shows any of the three Cleveland-area Schools of Rock has ever done.


Not to be outdone, Donovan made his singing debut a few hours prior. I give the kid a ton of credit. He had a nervous meltdown before leaving the house that afternoon. With a lot help from Mom (and a little from Dad), he composed himself, stood up in front hundreds of strangers, and sang his heart out (complete with dance moves) on The Beatles’ I Saw Her Standing There.


The encore performance is this Sunday (Jan. 22) at Brothers Lounge. Donovan should take the stage around 4 p.m., with Norah to follow at 5:30.

Here’s what I read this week:

A not-so-subtle reminder about the need for cybersecurity training

I feel like I’ve written a lot lately about the need for cybersecurity training for employees (for example, here, here, and here). Yet, as long as employees keep opening unknown emails and clicking on strange links, we need reminders of why this training is necessary. And, just this past week, the Cleveland Metropolitan School District offered a great teachable moment.

OSHA suggests employer best practices for anti-retaliation programs

The Occupational Safety and Health Administration has published recommended best practices to protect from retaliation employees who report workplace safety or other concerns under any of the 22 statutes OSHA enforces.

The document, entitled, Recommended Practices for Anti-Retaliation Programs [pdf], outlines five key elements of an effective anti-retaliation program:

Pets in your workplace? Assess the risks and draft a policy.

A reader recently emailed the following question:

Some people need service dogs to get to work. But many more simply want to take their dogs to work. What is the protocol? What are the HR rules on this? And what are the penalties for illegally taking a dog to work?

Are you thinking about opening up your business to employees’ pets? You will find very few resources on the internet to help. And, you will need a written policy before you allow pets in. Here are some considerations:

SCOTUS to review NLRB ban on class-action waivers

One of the biggest issues on the NLRB’s hit list over the past few years has been class-action waivers. In D.R. Horton, a 3-2 majority of the Board held that an arbitration agreement which requires employees to waive their right to collectively pursue employment-related claims in all forums (i.e., by giving up their right to file or join class or collective actions) violates employees’ rights under the National Labor Relations Act to engage in protected concerted activity. This issue is significant, as employers seek to use class-action waivers to combat the plague of wage-and-hour lawsuits.

In the four years since D.R. Horton, the NLRB has invalided hundreds of class-action waivers. On appeal, however, not all federal circuit courts have been kind to D.R. Horton. The 5th Circuit overturned D.R. Horton itself, while other circuits have sided with the NLRB on this important issue.

Now, the Supreme Court is poised to have the final say.