Government sanctioned discrimination is abhorrent and we, as a nation, should be ashamed

Trigger warning: today’s post is not for everyone. If, however, you are offended by what I am about to say, then today’s post is specifically for you.

Yesterday, the Department of Labor’s Office of Federal Contract Compliance Programs, the federal agency that regulates and governs federal contractors and subcontractors, proposed regulations to clarify the scope and application of the religious exemption contained in section 204(c) of Executive Order 11246.

You are DUMB if you threaten to fire employees who support labor unions, and even DUMBER if you tweet about it #barstool

Meet Dave Portnoy. He’s the editor of Barstool Sports, a website that I can only describe as having missed the memo entirely on #MeToo. Mr. Portnoy describes himself as: “El Presidente/3 time Bee Sting survivor. Heart attack survivor. 2019 #dipoff champion. Shot 4 under at Shinnecock. Worshipped like a 3rd world dictator.”

#yuck

Portnoy also holds some strong opinions, including about labor unions.

The law is a floor, not a ceiling: FMLA and IEP meetings

Last week, the Department of Labor issued an opinion letter [pdf] making clear that covered employers must provide intermittent FMLA leave to eligible employees who need time away from work to attend meetings to discuss the Individualized Education Program (IEP) of the employee’s child.

Rather than discuss the opinion letter in detail, I’ll instead direct you my blogging friends—Jeff Nowak, Suzanne Lucas, and Eric Meyer—each of whom covered this story over the past few days.

Instead, I want to use my space today to make a broader point about the law in general.

Do you know what to do if ICE shows up at your business?

Last week, US Immigration and Customs Enforcement agents arrested nearly 700 immigrants as part of a series of raids at work-sites throughout Mississippi. The raids are part of the Trump administration’s ongoing crackdown on illegal immigration.

What if ICE shows up at your business. Do you know what to do?

I’ve covered this topic previously. Given the recent news, It thought it was worth revisiting. You can read my thoughts here.

* Photo Courtesy of ICE. [Public domain], via Wikimedia Commons

WIRTW #563 (the “work in progress” edition)

Work in Progress is band fronted by Gaten Matarazzo, who is better known for his role as Dustin on Stranger Things. Next week, his band is coming through Cleveland on their summer tour, and, amazingly, my daughter’s band gets to open for them at this sold out show. I’m beyond excited for the opportunity this presents for her and her bandmates. Stay tuned for pictures, stories, etc.

Here’s what I read this week:

Who owns intellectual property created for a company?

Growing up in Philadelphia, there are few things more beloved than the Phillie Phanatic. Which is why I’m so intrigued by the lawsuit the Phillies recently filed against the people who claim to own the rights to the mascot the team contracted them to create in 1978.

Which got me thinking … what rights does a company have to intellectual property created by an employee or an independent contractor?

EEOC settlement teaches lesson on extended leaves of absence as ADA accommodation

An employee tells you that he was recently diagnosed with prostate cancer and needs a few weeks off for treatment, surgery, and recovery. Assume either you’re not an FMLA-covered employer or that the employee is not FMLA eligible.

Do you?

It is an inexcusable sin for an employer NOT to have an anti-discrimination policy

There are some employment policies that you can get away with not having. An anti-discrimination policy is not one of them.

In Hubbell v. FedEx SmartPost (decided yesterday by the 6th Circuit), FedEx learned this lesson the hard way.

Help me understand guns

This weekend was one of the deadliest on record ever for gun violence. Dozens were killed and more injured in separate shootings in El Paso, Texas, and Dayton, Ohio.

So, today, I take a diversion from employment law to ask a simple question.

Can someone help me understand guns?

WIRTW #562 (the “someday we’ll find it” edition)

When the whole world seems like it’s going to 💩 , sometimes all you need to brighten your spirits is a video of 🐸 singing about a 🌈.

So here’s Kermit the Frog (along with My Morning Jacket’s Jim James, and Janet Weiss, Sleater-Kinney’s ex-drummer) performing the Muppets’ classic, Rainbow Connection, from his surprise performance at last weekend’s Newport Folk Festival.


(I really want to find the two people who thumbs-downed this video on YouTube.)

Here’s what I read this week.

When an employee’s religion clashes with an employer’s dress code

A Muslim woman is suing the hospital at which she works as medical assistant, claiming she was told she needed a “note from the Quran” when she asked for an exception to the hospital’s dress code to wear a face covering during Ramadan.

The case, Boyd v. Cooper University Hospital, is pending in federal court in New Jersey. While it’s just filed, and years from resolution, we can use it to learn how an employer should react when a employee dons religious garb in the workplace.

Do workplace bullies violate OSHA?

According to a study recently published in the Journal of Applied Psychology, bullying bosses make workplaces less safe.

Poor treatment from a boss can make employees feel that they’re not valued by a group. As a result, they can become more self-centered, leading them to occasionally forget to comply with safety rules or overlook opportunities to promote a safer work environment.

The headline made me think that if bullying contributes to an unsafe workplace, can it also violate OSHA? The answer is quite possibly yes.

Labor and employment lessons from the world’s most combative stripper

Different type of stripper

Meet Brandi Campbell, a stripper and self-proclaimed labor activist for other strippers nationwide. She maintains stripperlaborrights.com, where she provides dancers with information about their legal rights, including their rights under the National Labor Relations Act. She’s filed (and won) unfair labor practice charges against clubs in Nevada, Minnesota, and Wisconsin, alleging that they discriminated/retaliated against her for engaging in statutorily protected activities and deprived dancers of their statutory rights by misclassifying them as independent contractors.

#MeToo hasn’t killed the office romance, just the inappropriate ones

According to the National Review, #MeToo killed the office romance.

It must be a brave soul who dares to strike up a flirtatious conversation at the workplace microwave these days. Only ten percent of Americans report having met their mate at the office, a level that is half what it was in the 1990s.

WIRTW #561 (the “don’t call me flaky” edition)

According to The Economist, dads face greater workplace penalties for taking parental leaves than do moms.

Americans see taking a break to care for children as a sign of lower commitment to work and even flakiness. … Whereas mothers who take time off to rear offspring face difficulties when returning to work, opt-out fathers may fare worse, says Scott Behson, author of a book called “The Working Dad’s Survival Guide: How to Succeed at Work and at Home”. America has a workaholic culture, he says. Mothers who put their families first eschew that culture, resulting in costs to their careers. But fathers who do so are violating both the workaholic culture and traditional gender norms.

Here’s the thing. Just because I enjoy being a dad does not make me flaky. It just means that I enjoy being a dad. We all make choices in our lives. I’ve chosen to eat dinner with my kids, attend their school conferences and events, haul gear to their concerts, and work the merch table for Norah’s band. Don’t get me wrong, I love being a lawyer. But, when I die, I’d much prefer my tombstone reads, “He was a great dad,” not, “He was a great lawyer.”

I’m a dad active in my kids’ lives. Yet, it doesn’t mean I’m any less dedicated to my job. It’s not an either/or proposition. You can be a good parent and a good employee. They are not mutually exclusive. So please don’t judge the quality of my work based on my commitment to my family. And please don’t call me flaky.

Here’s what I read this week:

Which mental health service does the FMLA not cover?

Yesterday, I discussed our national mental health crisis, and the important role employers play in removing barriers to employees receiving the help they need. Then, I came across this post on LinkedIn, discussing a massive barrier that the FMLA institutionally imposes.

An individual suffering with a mental health issue has various treatment and therapy options available to them. For medication, one can see a psychiatrist, a primary care physician, or a nurse practitioner. For assessment and therapy, one can see a psychologist, a clinical social worker, or a licensed professional counselor.

Amazingly, however, the FMLA does not recognize one of these licensed mental health professionals as a “health care provider.”

Employee suicide is the next big workplace safety crisis

A recent headline at businessinsurance.com caught my eye:

Suicide seen as “next frontier” in workplace safety risks

It’s a pretty dramatic headline, but when you drill down into the statistics, it has a lot of weight.

• Suicide is the 10th leading cause of death in the U.S.
• Between the ages of 10 and 34, however, suicide is the second leading cause of death, and the fourth leading cause of death between the ages of 35 and 54.
• In 2017, 47,173 Americans died from suicide (more than double the number of homicide victims), and another 1.4 million attempted suicide.
• Between 2000 and 2016, the U.S. suicide rate among adults ages 16 to 64 rose 34 percent, from 12.9 deaths for every 100,000 people to 17.3 per 100,000.
• In 2016, the U.S. Bureau of Labor Statistics hit a record in its 25-year tally of workplace suicides at 291, with the number gradually climbing over the prior decade.
• The highest suicide rate among men was for workers in construction and mining jobs, with 53.2 deaths per 100,000 in 2015, up from 43.6 in 2012.
• The highest suicide rate among women was for workers in arts, design, entertainment, sports and media, with 15.6 deaths per 100,000 in 2015, up from 11.7 in 2012.

The numbers are stark and scary, and show a nation in the midst of a mental health crisis. What can employers do to recognize and mitigate this risk, and provide a safe workplace for employees in crisis?

The 14th nominee for the “worst employer of 2019” is … the horrible harasser

In its press release announcing a recently filed sexual harassment lawsuit, the EEOC says that a N.Y.-based housing development and property management company violated Title VII when its owner and top executive, repeatedly subjected female employees to crude sexual comments, called them sexually obscene names, and showed them pornography.

And, as bad as that sounds, that description barely scratches the surface of what is actually alleged to have happened in this workplace.

Parental discrimination claims pose big risks for employers

According to workingmother.com, More Parents Than Ever Are Suing Their Employers for Discrimination—and Winning. The article is right — parental discrimination claims (which are really just sex discrimination claims brought by working parents) are very dangerous for employers.

WIRTW #560 (the “more kindness” edition) #IChooseKindness

Yesterday, I asked you all to join me in choosing kindness, and talked about Richard Cook’s Don’t Hurt Anyone Project. Over on LinkedIn, Richard took the time to share his thoughts on my post, which I’m sharing with y’all here.

Hi Jon, I am all in for #IChooseKindness Go! It is wonderful to see so many supportive comments. As you mentioned, I started the #donthurtanyoneproject There are a confluence of factors that led me to create something that felt so quaint and yet so urgent. One was sitting in the crowded gate area of airports waiting for a delayed flight. In my former career I did a lot of that. Inevitably I had the opportunity to talk with quite a few individuals. Sometimes we shared many of the same perspectives. Others not so much. But never in the latter of those two categories did a person get up and move to the furthest seat from me or I the same. We didn’t shout over each other. We just talked. When boarding time came we exchanged courtesies, sometimes shook hands and a few times figured out if we could be seated together to keep talking. It was hard for me to reconcile the “Divided States of America” narrative. No doubt that Americans disagree. However, I would suggest that for every ugly incident or rant that makes the news, there are far more that stop to help a motorist with a flat, make room in their family for a foster child or volunteer to help those struggling. Those people don’t ask for recognition but we need their energy. Urgently.

Let me know that you are choosing kindness by dropping a comment below, or by sharing your thoughts on any of your social channels with the hashtag #IChooseKindness.

Here’s what I read this week: