The easiest way to lose an employment lawsuit

Photo by Devin Avery on Unsplash

Yeterday, I was tagged with the following question on LinkedIn:

Interested in your opinion on this.

The “this” in question was an $7.97 million verdict a jury in Fresno, California, entered in favor of a Chipotle manager fired for allegedly stealing $626 in cash from the restaurant’s safe.

The ADA’s interactive process is always a two-way street

Photo by MelanieSchwolert via Pixabay

Who has the burden of proof in an ADA reasonable accommodation case? The employee, to prove a lack of an accommodation, or the employer, to prove the unavailability of an accommodation? 

In Snapp v. BNSF Railway, the 9th Circuit Court of Appeals re-affirmed that the burden squarely rests on the shoulders of the employee.

WIRTW #505 (the “birthday” edition)

This week I celebrated two milestones.

On May 9, the Ohio Employers Law Blog turned 11 (and after 11 years I finally dropped the apostrophe; grammarians, debate).

The day prior, Loula, our beloved family pet, turned 6.

Six is a milestone age for a dog in my family. I’ve never had a dog live this long. Flyer, my beagle, passed away at 5 from autoimmune hemolytic anemia. Zoey, our lab (and our “let’s get a dog before we have kids” dog), also passed away at 5 (you can read my obituary for her here).

Thus, we’ve waited with nervous anticipation for Loula to reach the age of 6, which she did on May 8.

It was certainly a day to celebrate. She kicked back with a dog-friendly cupcake (complete with candle, and which, for the record, my wife said tastes awful), while we humans ate ice cream and serenaded her with “Happy Birthday.”

Here’s what I read this week:

NBC News takes the unprecedented step to release its internal Matt Lauer harassment report

Image by Max Goldberg via Wiki Commons

Yesterday morning, NBC News released the complete report into its months long investigation of Matt Lauer.

I was astounded by NBC’s transparency. It is extraordinarily rare for a private company to release an internal investigative report of one of its employees. In fact, it runs counter to conventional wisdom that harassment investigations should be kept as confidential as possible under the circumstances. Perhaps the combination of NBC’s status as a news agency and the high profile nature of the allegations spurred its decision.

Sympathetic does not always equal protected under the ADA

Photo by Pexels on Pixabay

Today’s opinion is a lesson straight out of the school of hard knocks. No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it’s just not on his side.

When an opinion starts with this quote, you know that the plaintiff is not going to have a good day.

What happened in Sepúlveda-Vargas v. Caribbean Restaurants, LLC (1st Cir. 4/30/18) to garner this tough life lesson from the court?

Should employers still test for marijuana?

Photo by Michael Fischer from Pexels

Ohio’s medical marijuana program is set to be fully operational by September 2018. Ohio will join 28 other states, and the District of Columbia, in which doctors can legally prescribe marijuana to treat certain medical conditions.

Ohio’s medical marijuana law does not require that employers accommodate employees’ lawful use of medical marijuana. It also permits employers still to maintain drug testing policies, drug-free workplace policies, and zero-tolerance drug policies.

Yet, with the lawful use of marijuana spreading, employers are asking if it still makes sense to test for it as part of pre-employment drug screenings.

The 8th nominee for the “worst employer of 2018” is … the age discriminator

Today’s nominee for the Worst Employer of 2018 is Seasons 52, a national, Orlando-based restaurant chain.

Last week, it agreed to pay $2.85 million to settle a nationwide class age discrimination lawsuit brought by the EEOC. The lawsuit included significant direct evidence of age discrimination.

WIRTW #504 (the “once bitten, twice shy” edition)

Never in my life did I think that I’d ever attend a biker rally. Yet, three weeks from tomorrow, I’ll be in Sandusky, at Ohio Bike Week.

Why?

I’ll be watching Norah and her bandmates warming up the crowd for 80’s hair band Great White.

If you’re attending, please say hi. I’ll be the one without the motorcycle.

THIS is how you reasonably accommodate a disabled employee

Photo by David Pisnoy on Unsplash

I’ve spent a lot of time over the past 16 months discussing bad employers—those that so mishandled employees that they earned a spot on my list of America’s Worst Employers.

Today, I thought I’d take a look at the brighter side—an employer that handled a tricky employee issue correctly.

5.1 millions reason to keep religion out of your workplace

I’m thinking of starting a religion

“Onionhead” teaches people to direct their emotions in a truthful and compassionate way. It is central to the teachings of the Harnessing Happiness Foundation, a 501c3 nonprofit organization dedicated to emotional knowledge and intelligence, conflict resolution, and life handling skills.

Onionhead is also central to a religious discrimination lawsuit brought by the EEOC against United Health Programs of America and its parent, Cost Containment Group. The aunt of the defendants’ CEO is the creator of Onionhead.

No one should ever have to choose between their children and their job

Three female associates at Morrison & Foerster have filed an alleged $100 million class-action sex discrimination lawsuit against the firm. They claim that their employer “mommy tracks” lawyer moms working at the firm by denying them opportunities for advancement and higher pay.

According to the lawsuit [pdf] (care of the ABA Journal):

Hair discrimination; not a thing

Give me a head with hair, long beautiful hair
Shining, gleaming, steaming, flaxen, waxen
Give me down to there hair, shoulder length or longer
Here, baby, there, momma, everywhere, daddy, daddy
Hair, hair, hair, hair, hair, hair, hair, hair
Flow it, show it, long as God can grow it, my hair

– “Hair”

Friday’s tongue in check post about the beauty of baldness got me thinking about hair and employment law.

Or, more to the point, can an employer run afoul of discrimination laws by making an employment decision based on one’s hairstyle?

WIRTW #503 (the “bald is beautiful” edition)

I need to get something off my chest. An albatross I’ve carried since my teenage years. I’ve been crushed by the weight of success, intelligence, and sheer masculinity.

And now science has finally, and thankfully, provided a rational explanation for my years of pain.

Bald men look more successful, intelligent and masculine — science says 

The 7th nominee for the “worst employer of 2018” is … the pregnancy provoker

Kayla Edwards worked as a cashier for Aramark at its location in Gettysburg National Park.

In February 2017, Edwards became pregnant with her third child.

That’s when her troubles at work began, at least according to Edwards’ lawsuit [pdf] (filed earlier this week in federal court in Pennsylvania).

Nearly half of American workers admit to engaging in workplace revenge

Photo by Avalon_Mists on Pixabay

And every time I scratch my nails
Down someone else’s back I hope you feel it

Alanis Morisette 

Revenge. So natural, and yet so wrong. “Turn the other cheek” is always the preferred practice, and, yet, often life is more “smack you in the cheek” as you turn away.

Even at work.

According to a recent study, 44 percent of workers admit to partaking in some type of workplace revenge.

Maternity leave does not guarantee continued employment

By Grand Parc CC BY 2.0 via Wiki Commons

Michelle Bailey worked in the human resources department of Oakwood Healthcare. During her maternity leave, her immediate supervisor and others assumed her responsibilities, and discovered certain deficiencies in how she performed her job.

Discovery of those deficiencies led the supervisor to review Bailey’s qualifications as set forth in her employment application. That review, in turn, uncovered an application Bailey had submitted for a different position at Oakwood two years earlier. A comparison of Bailey’s two resumés on file lead to the conclusion that Bailey had falsified her later application by exaggerating her prior experience and qualifications.

That discovery, coupled with the performance deficiencies, caused Oakwood to terminate Bailey’s employment upon her return from maternity leave.

DO NOT sacrifice employee safety for productivity

Photo by Milo McDowell on Unsplash

The Verge reports that workers at an Amazon distribution facility are “forced to pee in bottles or forego their bathroom breaks entirely because fulfillment demands are too high.”

While this is horrible, and demeaning, it’s still just employees peeing in bottles. It’s not THAT big of deal? Right?

Wrong.

WIRTW #502 (the “AirTalk” edition)

Earlier this week, the U.S. Senate made history by unanimously changing its rules to permit Senator (and new mom) Tammy Duckworth to bring her newborn onto the Senate floor while she cast votes.

Yesterday, I guested on Los Angles public radio station KPCC’s AirTalk and spoke with Libby Denkmann about what this means for the future of parental leave laws in America, and why we should be ashamed that countries like Iran and Afghanistan do more for their working moms than we do.

Thanks to Libby for the great conversation, and to my friend, Kate Bischoff, for the connection.

You can listen here. The segment starts at 29:50, and my interview starts at 41:30.



Here’s what I read this week:

If you weren’t angry about the fired Saints cheerleader before, you will be now.

Remember Bailey Davis? She’s the New Orleans Saints cheerleader fired for violating the team’s social media policy.

Her offense? This photo, which she posted to her personal Instagram.

She’s already filed a civil rights complaint, and now she’s speaking out about her alleged discriminatory treatment, and discriminatory policies in professional cheerleading in general.

Apparently God is in the restaurant business, at least according to the 6th Circuit

Photo by chuttersnap on Unsplash

It’s been nearly three years since I first reported on the Department of Labor’s wage and hour lawsuit against Akron, Ohio’s, Cathedral Buffet, owned and operated by the Earnest Angley Ministries.

The DOL’s allegations are pretty offensive. Not only did it claim that all of the restaurant’s employees worked for free, it also claimed that the ministry coerced church members into volunteering, telling them they “had an obligation to provide their labor to the Buffet, in service to God, and that a failure to offer their labor to the Buffet … would be the same as failing God;” that Angley “was God’s prophet, and saying ‘no’ to Angley would be tantamount to saying ‘no’ directly to God,” and “‘blaspheming against the Holy Ghost.’”