Tuesday, April 25, 2017

2nd Circuit holds that it’s perfectly okay for an employee to curse out his boss on Facebook (NSFW)


It’s been two years since the NLRB determined that section 7 of the National Labor Relations Act protected an employee’s profanity laced Facebook rant simply because he ended it with a pro union message. I held out hope that the court of appeals would see the folly in the decision and send a clear message to employees and employers that such misconduct remains a terminable offense. NLRB v. Pier Sixty (2nd Cir. 4/21/17) [pdf] dashed that hope.

Monday, April 24, 2017

National origin discrimination laws don’t matter in Trump’s America


Last week, President Trump signed his “Buy American, Hire American“ Executive Order. The EO encourages American businesses to buy American-made products and hire American workers.

Come again? Does that say hire American workers? Doesn’t Title VII prohibit national origin discrimination?

Yes, Title VII still prohibits national origin discrimination. And, no, this Executive Order does nothing to change Title VII’s impact. But the manner in which the White House is promoting this EO is … curiously disturbing.

Friday, April 21, 2017

WIRTW #458 (the “update” edition)


Two stories I’ve recently covered—Fox News’s Bill O’Reilly sex harassment problem and Ernest Angley’s wage-and-hour problem—had pretty significant updates this week.

Who says there’s no justice in this world?

Here’s what else I read this week:

Thursday, April 20, 2017

Working Families Flexibility Act seeks to legalize comp time in lieu of overtime


If you are a private employer, it is 100 percent illegal for you to provide employees comp time in lieu of overtime for hours worked by non-exempt employees over 40 in a work week. If a non-exempt employee works overtime, you must pay them overtime, and you violate the FLSA if you provide comp time in its place.

The Working Families Flexibility Act, introduced earlier this year in Congress, seeks to change this rule.

Wednesday, April 19, 2017

6th Circuit tees up decision on LGBT discrimination coverage under Title VII


The 6th Circuit is currently considering whether Title VII’s definition of “sex discrimination”.

EEOC v. R.G. & G.R. Harris Funeral Homes alleges that the funeral home fired its funeral director because she is transgender and transitioning from male to female. The Eastern District of Michigan concluded that Title VII does not expressly cover LGTB discrimination, and limited the sex discrimination claim to a sexual stereotyping claim.

Tuesday, April 18, 2017

The bar for what qualifies as unlawful harassment in the 4th Circuit is pretty damn high


How high is the bar for what qualifies as unlawful sexual harassment in the 4th Circuit? Pretty damn high, if you ask me. Consider that in Wilson v. Gaston County [pdf], the Court concluded that the following misconduct did not entitle the plaintiff to a jury trial on her sexual harassment claim:

Monday, April 17, 2017

2nd Circuit provides plan for employers to win misclassification cases


In Saleem v. Corporate Transportation Group (2nd Cir. 4/12/17) [pdf], the 2nd Circuit Court of Appeals considered whether a company properly classified a group of black-car taxi drivers as independent contractors, or whether it should have classified them as employees. In ruling for the company, the court gifted employers a game plan to use when classifying workers to minimize risk in making the key determination of whether a worker is an employee or an independent contractor.

Friday, April 14, 2017

WIRTW #457 (the “sad clown” edition)


You say you want to see a sad clown sing a mashup of The Who’s “Pinball Wizard” to the tune of Johnny Cash’s “Folsom Prison Blues”? I’ve got you covered. Ladies and gentlemen, Puddles Pity Party.


Here’s what I read this week:

Thursday, April 13, 2017

6th Circuit avoids key legal issue, but still absolves union of harassment liability


Samuel Gompers, founder of the AFL, wrote that “[w]herever trade unions are most firmly organized, there are the rights of the people most respected.” But Gompers wasn’t quite right if Tanganeka Phillips’s claims are true; she alleges that one of the largest unions in North America discriminated against her on the basis of race.

When a judicial opinion starts out with a quote such as this, it’s usually not a good sign for the defendant, unless you happen to be the United Auto Workers, the defendant in Phillips v. UAW Int’l (6th Cir. 4/12/17) [pdf], which walked away from some pretty bad allegations of racial harassment.

Wednesday, April 12, 2017

Communicating with employees is key when a PR crisis strikes


Lots has been said about how United Airlines mishandled violently dragging a passenger from an overbooked flight. And none of it is good. Yet, make no mistake, how United CEO Oscar Munoz communicated with his company’s employees immediately following the incident did not do anything to make it any better.


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