WIRTW #450 (the “Kurt” edition)

Earlier this week, Kurt Cobain would have turned 50 years old. Uncoincidentally, also earlier this week Norah stepped in for an absent bandmate to sing lead on the song that made Kurt Cobain and Nirvana a household name, “Smells Like Teen Spirit”. I think Kurt would have approved.

And some video - Smells Like Teen Spirit. Love the energy and how much fun the kids are having on stage.

A post shared by Jon Hyman (@jonhyman) on Feb 20, 2017 at 4:01am PST

This Saturday night, I’ll be at the Rock & Roll Hall of Fame, watching this band kill it in front of thousands as part of the High School Rock Off Final Exam. They are scheduled to hit at 9:25. Tickets are only $12, and include admission to the Rock Hall. It a great night watching the best the area’s school-aged musicians.

Here’s what I read this week.

What’s good for the goose … NLRB protects employee’s Facebook post critical of his union

It won’t take much searching through the archives to find posts discussing the NLRB’s protections for employees’ Facebook posts critical of their employers (here, for example). Protected speech under the NLRA, however, cuts both ways. Section 7 not only protects anti-employer comments, but also anti-union comments. Thus, it would make sense that the NLRB would conclude, as it recently did in International Union of North America, Local Union No. 91 [pdf], that section 7 protects an employee who posts on Facebook comments critical of his labor union.

“If I could press a button and instantly vaporize one sector of employment law?” (redux)

Nearly six years ago, Walter Olson, writing as his Overlawyered blog, asked the following question:

“If I could press a button and instantly vaporize one sector of employment law…”?

This was my answer:

"A Day Without Immigrants" protests followed by days without work for fired employees

Last Thursday, in protest against President Trump’s immigration policy, people nationwide participated in “A Day Without Immigrants.” As part of the protest, many businesses closed their doors to show what our nation would look like without immigrants. In addition, many immigrants simply did not go to work.
As a result, many now find themselves unemployed.

Paw-ternity leave is a great idea, but please don’t forget about us humans

This is Loula, our vizsla.

We love our dog. And, when we brought her home four summers ago, it was a great benefit to our family that my wife had yet to return to work. She was home for Loula’s first two months, to acclimate her to our house and family. What if, however, you lack the luxury of not working during your puppy’s first few weeks at home?

BrewDog, a Scottish brewery set to open up in Columbus this Spring, has your answer—paw-ternity leave.

WIRTW #449 (the “do-over” edition)

Whether you are left or right, blue or red, liberal or conservative, Democrat or Republican, it’s hard to argue that the first 28 days of POTUS 45 have been anything other than a dumpster fire. It culminated over the past 48 hours with Trump’s bizarre press conference, and withdrawal of his nominee for Labor Secretary, Andy Puzder.

And then Trump did something amazing. He nominated someone eminently qualified to run the Department of Labor. Alexander Acosta will become the next Secretary of Labor. What do you need to know about Secretary-to-be Acosta?

• He served a well regarded term on the National Labor Relations Board from from 2002 to 2003.
• He is a former Assistant Attorney General for the Civil Rights Division of the Department of Justice, where, among other acts, he defended the civil rights of American Muslims.
• He is a former Supreme Court clerk and former U.S. Attorney
• He is currently a law school dean.
• Once confirmed, he will become the first Hispanic-American member of Trump’s cabinet, bringing some much needed diversity to the table.

Mr. Acosta should sail through the confirmation process. 

Bravo, President Trump. You and I have had a rough four weeks. This decision, however, is exemplary. Can you please make more decisions like this one?

Here’s what I read this week:

Andy Puzder, Trump’s pick for Secretary of Labor, withdraws

Late yesterday, news broke that Andy Puzder, Donald Trump’s pick for Secretary of Labor, had withdrawn his name from consideration, just one day before his oft-postponed confirmation hearing was to take place.

The 4th nominee for the “worst employer of 2017” is … the callous non-accommodator

This is Michael Trimble.

Originally from Ukraine, Michael was born without arms as a result of birth defects resulting from the Chernobyl nuclear disaster. He rides a modified bike designed specifically for him and his disability. He is extraordinarily inspirational.

He is also now unemployed.

Valentine’s Day at work

I am a Valentine’s Day scrooge. Yet, for someone who goes out of his way to avoid this forced and commercialized celebration of love, I’ve sure written about it a lot over the years. So, for today’s post, let’s take a jaunt back through the February 14(ish) archives, to examine the intersection of V-Day and the workplace.

Will new EEOC Chair usher in sweeping changes?

With a change in administrations comes a change at the head of various federal agencies, including the Equal Employment Opportunity Commission. The agency’s new chairperson, Victoria Lipnic, an EEOC Commissioner since 2010, is a Trump appointed Chairperson. So, with an eventual Republican-majority EEOC, will she undo the pro-employee policies of the Obama Democratic majority EEOC of the past eight years?

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.