Tuesday, March 28, 2017

When will employees learn that online comments can, and will, be used against them?

Business in the front, party in the rear
I’ve recently given two different speeches discussing the balance between an employee’s privacy and an employer’s right to know. One of the themes of this talk is that social media has irreparably blurred the line between one’s personal persona and one’s professional persona, and employees best be careful with that they say online, because employers are watching and holding them accountable.

Case in point? Buker v. Howard County (4th Cir. 3/20/17) [pdf].

Monday, March 27, 2017

Bring me the head of employment at will

At his always excellent Connecticut Employment Law Blog, Dan Schwartz recently asked the following question: “What Does ‘At Will’ Employment Really Mean?”

Dan argues that while employment at will is still a valid legal doctrine, if a judge or jury cannot view your termination as “fair”, then they will look for another (illegal) justification for your decision. That examination may not go your way.

Friday, March 24, 2017

WIRTW #454 (the “Oxford comma, the results” edition)

Damn, does the Oxford comma have some traction. I can’t recall the last time a case as mundane as O’Connor v. Oakhurt Dairy lit up the internet. But it did. And I got curious—just how do people feel about the l’il ol’ Oxford comma. So I asked. And you responded, by the hundreds. You spoke loud and clear. You don’t just like the Oxford comma, you love it.

There you have it. By a margin of more than nine to one, the Oxford comma wins. As for the other eight percent, please step into the 21st century and start dropping in that comma before the “and” in your serial lists.

Here’s what I read this week:

Thursday, March 23, 2017

The 8th nominee for the “worst employer of 2017” is … the cancerous boss

“Jon, you write a management-side blog. Why are you running a contest to find the worst employer of 2017?”

Because of employers like this one (via Courthouse News):

Wednesday, March 22, 2017

SCOTUS takes largely meaningless swipe at Obama’s NLRB legacy

Lafe Solomon
There is little doubt that under President Obama, the NLRB reinvented itself into an agency about which all employers must pay attention. One can trace much of this reinvention back to Lafe Solomon (a man with whom I once shared an NRP microphone), the NLRB’s acting general counsel from June 2010 through October 2013.

Yesterday, however, in NLRB v. SW General, Inc. [pdf], the Supreme Court held that Mr. Solomon’s tenure from January 5, 2011, through October 29, 2013, was unlawful, as it violated the Federal Vacancies Reform Act of 1998 (FVRA).

Tuesday, March 21, 2017

EEOC offers sage advice on following checklists for harassment compliance

Last June, the EEOC issued a comprehensive, bi-partisan report on harassment in the workplace. The report’s stated purpose was to “reboot workplace harassment prevention efforts” by focusing on efforts employers can take “in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated; ensuring employees are held accountable; and assessing and responding to workplace “risk factors” for harassment.”

One such tool the EEOC provided was a series of four checklist for employers to use to create an effective harassment prevention program.
  • Leadership and accountability.
  • Anti-harassment policies.
  • Harassment reporting systems and investigations.
  • Compliance training.

Monday, March 20, 2017

Swapping DNA for lower insurance costs is one wellness step too far

It is no secret that health care costs for employers and their employees are out of control. Many employers have attempted to hold down these rising costs by offering wellness-program incentives. The EEOC has signed off on these programs as legal as long as employee participation remains voluntary, which the agency defines as financial incentives for employee participation at or below 30 percent of the cost of coverage. Thus, employees have a choice—participate in the wellness program, or pay a surcharge of up to 30 percent.

One area that has remained off limits for employers under these wellness programs, however, has been genetic testing and other personal and family medical histories. A new bill moving through the House of Representatives, however, aims to change that.

Friday, March 17, 2017

WIRTW #453 (the “Oxford comma” edition)

Who knew that the l’il ol’ Oxford comma was so controversial? I would have never dreamed that yesterday’s post on the importance of its omission in a wage/statute would generate so much feedback, or that people feel so passionately about its use or non-use. In fact, it was my most shared and talked about post since my takedown of Trump’s first immigration ban.

To gauge exactly how you feel about the Oxford comma, I’ve designed a quick, one-question survey. Take a moment, and click “yes” or “no” on whether one should use the Oxford comma when writing.

Create your own user feedback survey

I’ll publish the results in the coming weeks.

Here’s what I read this week:

Thursday, March 16, 2017

For want of an Oxford comma

Vampire Weekend once asked, “Who gives a f__k about an Oxford comma?” The answer, apparently, is the 1st Circuit Court of Appeals, a whole lot.

In O’Connor v. Oakhurt Dairy [pdf], that court reversed the dismissal of an overtime lawsuit based on the absence of a Oxford comma in a list of activities that qualify for a certain exemption under Maine’s wage-and-hour law.

Wednesday, March 15, 2017

The 11th Circuit’s odd LGBT-discrimination decision

Late last week, the 11th Circuit Court of Appeals, in Evans v. Georgia Regional Hosp. [pdf], held that Title VII does not protect sexual-orientation discrimination per se, and that to sufficiently plead such a cause of action under Title VII, one must allege facts sufficient to establish that the employer discriminated based on non-conformity with sex-based stereotypes. 

As such, this decision directly conflicts with the formal position of the EEOC (a priority that EEOC Commissioner Chai Feldblum announced will not change under President Trump), and expected decision by the 2nd and 7th Circuits.

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