WIRTW #431 (the “stop breaking down” edition)

Last Saturday was Jack White show #1 for Norah and her School of Rock friends. One of my personal highlights was Norah singing The White Stripes’s cover of the Robert Johnson 1937 blues classic, “Stop Breaking Down”.

A video posted by Jon Hyman (@jonhyman) on Sep 17, 2016 at 6:04pm PDT

Show # 2 is this Sunday, September 25, at 12 pm, Brothers Lounge,11609 Detroit Ave., Cleveland. As always, stop and say hi, and I’ll buy you a beer.

Here’s what I read this week:

Discrimination

• You? A Biased Interviewer? Of Course Not. Oh, Wait… — via Evil HR Lady, Suzanne Lucas
• Is race discrimination bad for business? — via Phil Miles’s Lawffice Space
• Orange Crushed! Jury awards $277,565.44 to a diabetic employee fired for drinking OJ at work — via Eric Meyer’s Employer Handbook Blog
• The ADA and Entrepreneurial Start-ups — via Next Blog
• Honesty is an Employer’s Best Policy – Honest Defense Rule in Employment Discrimination — via Michigan Employment Law Advisor
• AGEISM: Sharing This Article Only Adds To Age Bias, My Old, Misguided Friends… — via The HR Capitalist, Kris Dunn
• The Almost-Final Piece on the EEOC and Workplace Retaliation… — via Janette Levey Frisch’s The Emplawyerologist
• You Have Too Many Children: If You Get Pregnant You’re Fired! — via FisherBroyles

Social Media & Tech

• The Biggest Cybersecurity Threats Are Inside Your Company — via Harvard Business Review
• Social engineering puts HR on front line of cybersecurity battle — via Technology for HR
• Cybersecurity Unemployment Rate is Zero — via Ride The Lightning
• Loose Lips Sink Ships — via Currents
• How The Internet Of Things Is Transforming Your World — via The ChamberPost
• Workplace Trends: The Ethics of Dealing With Robots At Work — via Workplace Diva

HR & Employee Relations

• Election 2016: Three Employment Law Debate Questions for Hillary Clinton — via Dan Schwartz’s Connecticut Employment Law Blog 
• Workplace bullying, psychological trauma, and the challenge of storytelling — via Minding the Workplace
• Can Flexible Work Options Attract Top Talent? — via 1 Million for Work Flexibility
• What Hiring Managers Really Ask When They Call Your References — via Lifehacker
• Top Reasons to Mediate Employment Disputes — via The Labor and Employment Law Blog

Wage & Hour

• The Pros and Cons of Requiring Workplace Arbitration — via California Employment Law
• The FLSA overtime rule, corporate subculture, and the “Wells Fargo effect” — via Robin Shea’s Employment & Labor Insider
• Chipotle Avoids DOL Scrutiny Despite ‘Wage Theft’ Claims — via BNA

Labor Relations

• Kroger’s Discriminatory Enforcement of No-Solicitation Rule Violates NLRA — via The Employment Brief
• Do as I say, not as I do: SEIU and the ‘Fight for $15′ campaign — via HR Hero Line

OSHA & Safety

• OSHA Draws Line in Whistleblower Deals — via Joe’s HR and Benefits Blog
• OSHA to Employers: No Gagging Whistleblowers! — via Employment Law Worldview
• Employers Using Mandatory Post-Accident Drug Testing Should Reconsider the Practice in Light of OSHA Rule — via Iowa Employment Law Blog
• OSHA Issues Whistleblower Settlement Guidance — via The Employment Brief

Yes, these are my readers

It’s rare that I write a same-day follow-up post, but an email I received from a reader in response to this morning’s post merits special attention.

The email read as follows:

Your article on why your son hates Donald Trump is way off base. I think it exemplifies why you have not adequately informed your son on the facts such as she could always come here on a tourist visa….. Educate your son and let him know that part of the reason for Trump’s stance on ILLEGAL immigration is because one day an Illegal Immigrant just might take the job he wants to earn more money.

This was my response:

He’s 8, and while brilliant (the apple not falling far from the tree), I think the nuances of immigration policy might be a bit much for him. Besides, we start our policy discussions in the Hyman house with nuclear proliferation. Immigration policy isn’t until he turns 10.

I’m going to assume I now have one less reader, and that’s perfectly fine by me.

Discourse matters

My eight-year-old son hates Donald Trump. I know hate is a strong word. I rarely use it (except when describing the most evil of all condiments, mustard. I hate mustard).

But, Donovan hates Donald Trump. All you have to do is mention his name, and he will tell you how much he hates the Donald, and how he has no room in his life for anyone who thinks any differently.

Over the months of listening to our son tell us of his hatred for Trump we never thought to ask why. Until we did.

When is December 1 not December 1? When two lawsuits challenge the new overtime rules.

On December 1, the Department of Labor’s new salary test for exempt employees is set to take effect, raising the salary level to qualify for certain white collar overtime exemptions from $455 per week to $913 per week.

That is, it is set to take effect if the two lawsuits filed yesterday don’t delay or outright stop the rules from taking effect.

Regulating social media at work is a Sisyphean task

According to Ajilon (as reported by BenefitsPro), American employees spend 140 per year (or an average of 33 minutes per day) on Facebook, Twitter, Instagram and other social networks. Aggregated across all employees, the survey estimates this personal time costs employers $192.4 billion each year.

These numbers, however, merely beg the questions — (1) should you care and (2) what can you do about it?

11th circuit decision on dreadlocks and race asks big questions on the meaning of discrimination

In EEOC v. Catastrophe Management Solutions [pdf], the EEOC asked the 11th Circuit to determine whether banning an African-American employee from wearing dreadlocks constitutes race discrimination.

In a lengthy decision that discusses the very concept of race, the court answered the question “no”.

WIRTW #430 (the “third man” edition)

I have officially dubbed September Jack White Month in the Hyman house. I’ve never hid my love of all things Jack White. So, when the same month brings us the release of Jack White – Acoustic Recordings 1998-2016, a live Tonight Show performance, and my daughter performing in an all Jack White show (9/17 @ 2:30 and 9/25 @ noon, Brothers Lounge, mention this blog and your beers are on me) what's not to love?

Here’s what I read this week:

The NLRB is now basically creating unfair labor practices out of thin air

Image via forbes.com

Those that have been readers for awhile know of my dislike of the NLRB’s expansion of its doctrine of protected concerted activity (e.g., here and here).

The latest on the NLRB’s hit list: employee mis-classifications. The NLRB has concluded that an employer has committed an unfair labor practice and violated an employee’s section 7 rights by (mis)classifying its employees as independent contractors. Or so was the Board’s conclusion in its recently published General Counsel Advice Memorandum [pdf].

When it’s better to be lucky than good

Employers, sometimes it is better to be lucky than to be good. Case in point? Graves v. Dayton Gastroenterology [pdf], decided yesterday by the 6th Circuit.

Our employment discrimination laws are not a pretense

Last week, the 6th Circuit decided Richardson v. Wal-Mart Stores [pdf], a fairly run of the mill age discrimination lawsuit. The court decided that Richardson had failed to establish that Wal-Mart’s reason for firing her—a two-year history of disciplinary warnings—was pretext for age discrimination.

What caught my interest was not the decision itself, but instead the following statement made by the plaintiff’s attorney to Employment Law 360 about the decision:

The unfortunate reality is that anti-employment discrimination laws have largely become a pretense in the U.S. These laws remain on the books; but many courts rarely enforce them.

Forced retirement is an age discrimination no-no

Image credit: slate.com

The EEOC has sued a Colorado hospital for age discrimination. The key allegation? That it forced employees to resign because of their age. The lawsuit claims hospital managers made ageist comments, including that younger nurses could “dance around the older nurses” and that they preferred younger and “fresher” nurses.

According to Phoenix District EEOC Regional Attorney Mary Jo O’Neill, “Research shows that pervasive stereotypes about older workers still persist—for example, there are widespread stereotypes that older workers are less motivated, flexible, or trusting and that a younger workforce is preferable. These stereotypes are flatly untrue and must be recognized for what they are—prejudice and false assumptions.”