The 4th nominee for the “worst employer of 2019” is … the flagrant farmer

I'll let the EEOC do the heavy lifting on today's nominee for the Worst Employer of 2019 (the 4th thus far):

A federal jury rendered a verdict … awarding $850,000 in compensatory and punitive damages to a female farmworker at Favorite Farms in Dover, Fla., who was raped by her supervisor and reported it to police and management that same day.…

Ohio amends its employment laws to limit joint employment for franchisors

As the debate over the meaning of "joint employer" continues to rage at both the NLRB and in the federal courts, Ohio has jumped into the debate by passing legislation to limit this definition under various Ohio employment laws.

Effective yesterday, franchisors will not be deemed joint employers with their franchisees unless:

• the franchisor agrees to assume that role in writing or a court of competent; or
• a court of competent jurisdiction determines that the franchisor exercises a type or degree of control over the franchisee or the franchisee's employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor's trademark, brand.

WIRTW #538 (the “drones” edition)

OSHA is now using camera-carrying drones to investigate outdoor workplaces.

The good news? Use is intended to be limited to areas that are otherwise difficult and dangerous for OSHA inspectors to access. Plus, OSHA will not use them without an employer's consent.

The bad news? Employers that withhold consent could face OSHA's ire and a search warrant. Plus, the program lacks any protections for things like scope of recording, employee privacy, or third-party access to the video.

You can more about it at the Ohio OSHA Law Blog, here.


Here's what else I read this week:

An expensive lesson on religious accommodations

A federal court jury in Miami has awarded a hotel dishwasher $21.5 million after concluding that her employer failed to honor her religious beliefs by repeatedly scheduling her on Sundays, and then firing her.

Gillette's toxic masculinity ad isn't the problem; toxic masculinity is the problem

Gillette is facing a lot of praise, and a lot of backlash, over its recent ad slamming toxic masculinity culture.

NLRB reverses course and restores some sense to its concerted activity rules

The NLRB is the federal agency that saw the widest expansion of employee rights during the Obama presidency. And the doctrine that expanded the most was the Board's definition of protected concerted activity.

In Whole Foods Market, the NLRB had previously held that "activity by one individual is deemed concerted if undertaken in an effort to enforce the provisions of a collective-bargaining agreement or in order to initiate or induce group action." In other words, a lone wolf could act in concert with other employees based solely on his or her intent to do so. This rule lead to some absurd results.

Last week, in Alstate Maintenance LLC [pdf], the Board restored some much needed sanity to the definition of "concerted" for the purpose of protected concerted activity.

What's good for the goose? "Reverse" LGBTQ discrimination

If, like me, you believe that Title VII's definition of "sex" includes sexual orientation and gender identity, then what do you do with the claim of a heterosexual employee who claims discrimination because of her anti-LGBTQ views?

WIRTW #537 (the “Roma” edition)

We are contemplating spending Spring Break in Rome. For those who've been, what's you best tip for first-time visitors? Sights not to be missed? Things that are off the beaten path? Where to stay? Best pizza? Best gelato?

Drop a note in the comments below and let me know your Rome tips.

Here's what I read this week:

The 3rd nominee for the “worst employer of 2019” is … the barbarous boss

2019 is officially the year that my Worst Employer contest went international.

How do you motivate your employees to hit their sales goals? If you're the Runfa Hair Salon in Wuxi, China, you abuse the hell out of 'em.

What does it mean for jobs to be "substantially equal" under the Equal Pay Act?

The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Substantial equality is measured by job content, not job titles.

The Act is a strict liability law, which means that intent does not matter. If a women is paid less than male for substantially similar work, then the law has been violated, regardless of the employer's intent.

This strict liability, however, does not mean that pay disparities always equal liability. The EPA has several built-in defenses, including seniority, merit, quantity or quality of production, or any other factor other than sex.

A recently filed case out of Boston delves into these issues.

Beware pre- and postliminary activities

In Integrity Staffing Solutions v. Busk, the Supreme Court held that the FLSA only requires employers to compensate employees for time spent performing "preliminary" (pre-shift) and "postliminary" (post-shift) activities that are "integral and indispensable" to an employee’s principal activities. What are "integral and indispensable?" Those activities that are (1) "necessary to the principal work performed" and (2) "done for the benefit of the employer."

Your 2019 Employment Law Compliance Checklist

Today is the start of the first full week of 2019. Which means it's a perfect time to take a step back and review your efforts at HR and employment-law compliance for the coming year.

This list is not mean to be complete or exhaustive, but should provide a high level look at the top 20 issues that you should be reviewing this year, and every year for your business.

WIRTW #536 (the “Ex's and Oh's” edition)

It's been a bit since I've posted any of my kids' music, so here's Norah covering Elle King's Ex's and Oh's (one of my winter-break highlights).

 

And here's Fake ID closing their set at Stella's Music Club (another winter-break highlight).

Here's what I read the past few weeks:

Do as they say, not as they do: employees accuse Planned Parenthood of pregnancy discrimination

According to a scathing report by The New York Times, employees nationwide are accusing Planned Parenthood of engaging in rampant pregnancy discrimination.

Some examples:

The 2nd nominee for the “worst employer of 2019” is … the little rascal racist

Welcome to 2019. New year, same old employers earning themselves nominations for my annual race to the bottom.

Darryl Robinson, the only African-American employee in his Marriott Vacations Worldwide office, claims he was subjected to repeated racial harassment during his 11 months of employment.

'Twas the Employment Law Night before Christmas

'Twas the night before Christmas, when all through the office
Not a creature was stirring, well, just one of the bosses;
The bonuses were paid by the company with care,
In hopes that no ungrateful employees would swear.

Announcing THE WORST EMPLOYER OF 2018

The day has finally arrived. It’s time to announce the Worst Employer of 2018.

To remind you, we had four finalists in contention for this … (dis)honor:

• The Murdering Manager — company owner hires two men to rough-up a handyman who was not doing his job, and they accidentally kill him.

• The Sexist, Racist, Xenophobic, Oh My! — plant manager calls foreign-born employees "terrorists" and women "bitches," and tells the only black employee that her husband should work in a cotton field with a rope around his neck.

• The Supervisor Supremacist — supervisor begins morning staff meetings by saying "White Power" and giving the Nazi salute; when African-American employee complains, he finds himself hanged in effigy.

• The Tasering Torturer — company owner disciplines employee by threatening to kill him, lighting fires near him, and repeatedly shocking him with a taser.

 

The final vote wasn't close. The winner tallied an astounding 62% of all first place votes.

The Worst Employer of 2018 is…

CBS denies Les Moonves every penny of his claimed $120 million severance

Today is your last day to vote for the Worst Employer of 2018. The polls close at 11:00 pm tonight. I'll announce this year's big winner tomorrow.

Cast your vote here.

Before we crown this year's worst employer, I thought I'd mention an employer who did something right.

CBS.

Non-solicitation agreements are not a license to steal an employee's already existing customers

Hall v. Edgewood Partners Ins. Center (6th Cir. 12/14/18) [pdf] asks a question that we see arise often in litigation with former employees over restrictive covenants—can an employer limit an employee's access to customers, clients, or other contacts that the employee had prior to the employment.

Or, to put it another way, who owns an employee's pre-existing book of business, the employee or the employer?

WIRTW #535 (the “live from Cleveland” edition)

According to a recent survey, social media is the No. 1 challenge for small business owners. Allow me to offer a solution. 

Last month I had the pleasure of presenting, Think Before You Click! Managing Workplace Social Media. It's an hour-long run-through of myriad reputational and legal issues that employers face when the employees engage on social media.

(I wish YouTube picked a more flattering cover frame.)

Enjoy.


Here's what I read this week: