Is joint employment the issue that unites our divided government?

I cannot recall a time when our government has been more divided across ideological and party lines. (I don’t count the early 1860s, because that’s not a time a can remember.) Thankfully, an issue has come along to build a peace bridge over the streets and through the halls of Washington D.C.

This issue—joint employment, via the Save Local Business Act [pdf], which clarifies that two or more employers must have “actual, direct, and immediate” control over employees to be considered joint employers.

NBC reignites privacy debate by requiring social-media passwords of job applicants

“Those who cannot remember the past are condemned to repeat it.”  (George Santayana)

It’s been eight long years since Bozeman, Montana, set the internet on fire by requiring that job applicants for municipal positions turn over passwords to their personal social media accounts as part of the application process. In the wake of that story, states rushed to introduce legislation prohibiting this practice; many succeeded. And, the story more or less died.

Thank you, NBC, for reigniting it.

Justice Department takes a stand in favor of LGBTQ discrimination

LGBTQ prohibitions continue to make headway in the courts. While Congress has remained silent on the issue, more and more state and federal courts hold that the law’s existing prohibitions against sex discrimination implicitly cover sexual orientation and other forms of LGBTQ discrimination.

The latest appellate court to take up this issue in the 2nd Circuit, in Zarda v. Altitude Express. Just last week, the Department of Justice filed its amicus brief [pdf] in this case. Yet, in that brief, the DOJ argued that Title VII’s prohibition against sexual stereotyping as sex discrimination does not include LGBTQ discrimination. This position advanced by the DOJ is contrary to that already espoused by the 7th Circuit, many district courts, and the EEOC.

WIRTW #469 (the “rock the lot” edition)

Do you like beautiful Ohio summer sunshine, delicious food-truck cuisine, and sweet rock ‘n’ roll music?

If you answer “who doesn’t,” “yum,” and “bring it,” then you need to be at 16888 Pearl Road this Sunday from 1 – 3(ish) pm. That is when School of Rock Strongsville will hold its annual “Rock the Lot” show, during which Norah (punk) and Donovan (Beatles) will play some of their aforementioned sweet music.

Here’s what I read this week:

Treat harassment by non-employees no differently than harassment by employees

Consider the following lawsuit the EEOC filed against a California senior-care provider:

The civil rights agency found that Rashon Sturdivant, an experienced care provider, faced daily harassment, including racially offensive remarks about “brown sugar” and “black butts,” requests to perform sexual acts, and lewd comments about her body. The client also masturbated in front of her and groped her when she performed routine tasks like helping him sit up in bed or cleaning him. Although Sturdivant and other care providers informed R. MacArthur of his conduct, the EEOC charges that the employer failed to act on these complaints and also retaliated against Sturdivant by refusing to reassign her to another client.

The 14th nominee for the “worst employer of 2017” is … the horny head of HR

The 14th nominee for the worst employer of 2017, on which you'll be be voting at year's end, is perhaps the worst HR exec ever. If she's not the worst, she's at least the most libidinous.

From the New York Post:

OSHA, what say you about Michael Phelps vs. Shark?

This week is Shark Week on the Discovery Channel. And the marquee event of this year's Shark Week was Olympic swimmer Michael Phelps "racing" a great white shark. I say "racing" because Phelps did not race an actual shark. Instead, he swam against a CGI shark based on a previously recorded shark. To create the CGI, the show had to record a shark swimming in a straight line for a pre-determined distance. And, since great white sharks are not known for their trainability, the job to lure the straight-line swim fell to this guy.

Don't do this at home. #SharkWeek pic.twitter.com/hgOF0905aq

— Shark Week (@SharkWeek) July 24, 2017

Court rules that religious accommodation request is not protected activity for retaliation claim

A Minnesota federal court has ruled that an employee’s request for a religious accommodation did not qualify as protected activity to support the employee’s retaliation claim. EEOC v. North Memorial Health Care (D. Minn. 7/6/17) involves a hospital that withdrew a conditional job offer to a nurse after she disclosed that she was a Seventh Day Adventist and could not work Friday nights because of her religion.

WIRTW #468 (the “big in Japan” edition)

True story. While trekking between San Francisco’s Coit Tower and Lombard Street, we passed a group of Japanese tourists exiting their bus. One of girls, wearing a striped shirt sort of similar to Norah’s striped dress, asked if she could take a selfie with Norah. A little Puzzled and very curious, my wife asked, “Is it because you’re both wearing stripes?” “No,” she replied, “It’s because she’s so pretty.”

Somewhere in Japan, Norah has a fan club of a half-dozen girls, all with Norah selfies on their phones.

While I’m on the subject of Miss Norah, she has some pretty cool gigs coming up over the next two weeks.

• On August 3, her band, the Major Minors, plays The Grog Shop, opening for the national School of Rock AllStars. They hit at 7 pm, and tickets are only $10, available here.
• On August 5, the Major Minors again invade Whiskey Island, with music from 2 – 6 pm, and this show is free.
• Finally, on July 30, SoR Stronsgville holds its annual Parking Lot Show, previewing its summer shows, to include Donovan’s Beatles show and Norah’s punk show. Free music and not-free food trucks start at 1 pm.

Here’s what I read this week:

This is what the interactive process is supposed to look like

Last week, Donovan turned 9. Since we were in California during his birthday, we’ve had a bit of a delayed celebration back home. Since D-man has Celiac Disease and cannot eat anything with any gluten, he wanted an ice cream birthday cake. For him, however, ice cream can be tricky. Even if the ice cream itself contains zero gluten in its ingredients, it can still make him ill if it becomes cross-contaminated.

The (high) times they are a changin’: medical marijuana and disability discrimination

In what is believed to be the first decision of its kind, the Massachusetts Supreme Judicial Court has allowed an employee to pursue a disability discrimination claim based on the use of medical marijuana.

A reminder that any employee can sue you at any time

Another obvious lesson

Today’s lesson may seem obvious, but it is one worth repeating: any employee, no matter the on-the-job misconduct, can sue you. Filing a lawsuit is one thing, succeeding on that lawsuit is an entirely different animal.

Case in point: Robinson v. Klosterman Baking Co. (S.D. Ohio 7/5/17).

What I learned on my summer vacation

Saturday evening my family and I returned from our two-week California vacation. Five nights in Los Angeles, two in Paso Robles (if you ever pass through, I cannot more highly recommend Sculpterra Winery and the Paso Robles Inn), three in Palo Alto (where Donovan participated in a research study seeking a link between Noonan Syndrome and ADHD, and which resulted in both of my kids now wanting to attend Stanford … best of luck to them and me), and three in San Francisco. We had epic adventures, experienced Disney (of course), hiked and biked, enjoyed beautiful scenery, reunited with family and friends, and walked … a lot (72 miles to be precise).

We also learned one valuable HR lesson.

WIRTW #467 (the “here we are now, entertain us” edition)

Last Saturday, Norah’s band, the Major Minors, played to a packed courtyard outside the legendary Grog Shop. And boy did the crowd have a good time. Especially this woman.

This woman was everything today. The Major Minors absolutely slayed their gig - so many happy people enjoying their music @schoolofrockcle #sorcle

A post shared by Jon Hyman (@jonhyman) on Jun 24, 2017 at 1:00pm PDT

The Major Minors return to the scene on August 3rd, where they’ll play inside the Grog Shop, opening for the School of Rock Allstars (the school’s national touring band).

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The blog is going on hiatus for two weeks. I’ll be back on July 17 after a much deserved vacation.

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Here’s what I read this week.

Ohio looks to put enforcement muscle behind workplace concealed carry law

It’s been six months since Ohio made it illegal for employers to prohibit employees (or anyone else for that matter) from storing a firearm in their vehicles on the employer’s property. This law, however, lacks any specific statutory teeth (sort of). If Ohio legislators get their way, this omission will soon change.

More on why holding lawyers liable for retaliation to a client's employee is the worst idea

Yesterday’s post discussing Arias v. Raimondo as the worst employment-law decision of 2017 was way more controversial than I imagined. To me, it’s a no-brainer. It’s dangerous for courts to hold an employer’s lawyer liable for retaliation against the employees of the lawyer’s client. It will chill an attorney’s ability to give proper advice to one’s client, because anything that remotely could result in an employee suffering an adverse action could, under the logic of Arias, give rise to a retaliation claim. Then the comments rolled in:

Is this the worst employment law decision of 2017?

I’ll be vacationing in California with my family the first two week of July. After reading the 9th Circuit’s decision in Arias v. Raimondo—holding an employer’s attorney for liable for FLSA retaliation against his client’s employee because the employee sued his client for unpaid overtime—I’m thinking of adding the 9th Circuit to my list of tourist stops in San Francisco to see if courthouse resembles a Salvador Dali painting. Because this decision is flat out bonkers.

The 13th nominee for the “worst employer of 2017” is … the racist boss

I couldn’t describe the 13th nominee for the worst employer of 2017 any better than CNN did in its story about this (alleged) peach of a boss:

WIRTW #466 (the “solo” edition)

I gotta give my girl credit. She’s got cohones (especially at the age of 11). Through a casual exam-chair conversation with her orthodontist, he learned that she plays music and she learned that he’s involved with an annual summer solstice music festival. From that, she booked herself her first ever solo gig. She spent the next day working up and running through six songs, and played to a mid-afternoon crowd outside our favorite French restaurant. And, like always, she was aces. Here a few highlights strung together medley-style.


And, if you’re local and crave the full band experience, the Major Minors play a full set from 1-3 tomorrow, during the Coventry Village Sidewalk Sale & Carnival Games Party (one of Cleveland.com’s “Top things to do in Cleveland this weekend.” They will rock the courtyard outside of the Grog Shop, 2785 Euclid Heights Blvd., Cleveland Heights (coincidentally, a mere block from my law school apartment).

Reporting harassment down is no trigger for employer action, says 6th Circuit

Employers have a legal obligation to investigate known sexual and other unlawful harassment, and exercise reasonable care to prevent and promptly correct any unlawfully harassing behavior. When in harassment “known” by an employer such that it triggers this obligation? EEOC v. AutoZone (6th Cir. 6/9/17) offers some key guidance when an employee fails to report harassment up the chain of command per her employer’s written harassment policy.