The federal assault on joint employment continues

First it was the NLRB. Next it was OSHA. Now, the Department of Labor’s Wage and Hour Division is taking its turn cracking down on joint employment.

Last week, the WHD launched a microsite entitled, Joint Employment under the FLSA. Most notably, this site included the publication a new Administrator’s Interpretation, which picks up the NLRB’s liberalized joint employer standard by relying on indirect or potential control, in addition to actual control, as the lynchpin of joint employment.

WIRTW #397 (the “Woodstock” edition)

I'm well aware that I write a lot about my daughter’s music, but I do so because (a) I know a lot you enjoy it, and (b) I’m a really proud dad. Today, I’m doing so again, because last Saturday Norah blew me away. Her “Psychedelic 60s” show closed with the Jefferson Airplane classic “Somebody to Love”, with Norah absolutely killing it on lead vocals.


You have another chance to catch the show live, tomorrow at the Music Box Supper Club. Norah’s band takes the stage at 1 pm, and the show is free.

Here’s the rest of what I read this week:

SCOTUS calls a balk on attempted class-action pick-offs

It’s been almost three years since the Supreme Court decided, in Genesis HealthCare Corp. v. Symczyk, that an employer moots an FLSA collective action when the named plaintiff rejects an offer of judgment that would have satisfied all of the claims brought in the case.

Or did it?

Appellate court reinstates sex-discrimination claim of transgendered worker

A federal appellate court reinstated the sex-discrimination claim of a transgender auto mechanic. Credit Nation Auto Sales fired Jennifer Chavez less than three months after she notified it of her gender transition.

The employer argued that it fired her because it caught her sleeping in a customer’s vehicle while on the clock. Even though the court concluded that the employer’s reason was “true and legitimate”, it nevertheless reversed the trial court’s dismissal of the sex-discrimination claim.

NLRB continues to slam employers on mandatory arbitration clauses

Last week, the Huffington Post reported that Guitar Center was requiring all of its employees to choose between signing arbitration agreements or losing their jobs.

I have been critical of employers’ use of arbitration agreements because I do not believe that they provide employers with a quicker, cheaper, and less risky alternative to a judicial resolution of employment disputes.

The NLRB is also highly critical of arbitration agreements, but for a wholly different reason. The NLRB believes that such clauses unlawfully infringe on the rights of employees to engage in protected concerted activity.

WIRTW #396 (the “walking dead”) edition

I love the creativity of children, mine or otherwise. Donovan can’t recall which of his bandmates came up with the name for his Rock 101 band (performing two free shows at the Music Box Super Club — Jan. 16 @ 2:30 and Jan. 23 @ 1:00), and it’s too good not to share: Zombie Fried Chicken.

There are bands everywhere that wish they had thought of the name first. Too bad, it’s taken.

Here’s the rest of what I read this week:

Ohio court muddles the issue of counterclaims-as-retaliation

Friedrich Nietzsche once said, “It is impossible to suffer without making someone pay for it; every complaint already contains revenge.” Litigation, however, is no place for revenge. The question I am most asked by clients after they are sued, besides, “How much is this going to cost me,” and “After I win I can collect my attorneys’ fees from that bastard,” is, “How do I countersue that bastard for _________?”

A recent Ohio appellate decision will, unfortunately, muddle the answer to this question.

OSHA now thinks that it can cite facilities it hasn’t even visited

Central Transport operates trucking terminals around the country. As a result of OSHA’s investigation of one facility in Massachusetts, the agency fined the company $330,800 for violations relating to powered industrial trucks. That, in and of itself, is not that remarkable. What OSHA did next, however, should cause your head to spin.

EEOC stakes its turf on the issue of sexual orientation discrimination

As I thought of which David Bowie song to support today’s effort, the one that leapt to mind is “Space Oddity” (I was going to use “Changes”, but Dan Schwartz already claimed it for his post yesterday).

To me, it is a complete oddity that, in the 2016, it is still statutorily legal for an employer to fire an employee because of that employee’s sexual orientation. On this point, the EEOC and I see eye-to-eye. The difference, however, is that the EEOC is in a position do so something about it. What it is not doing is sitting around and waiting for Congress to do something about it.

Employers feeling good about win in EEOC wellness case

Nine months ago, the EEOC published proposed regulations detailing how and when employers can maintain wellness incentives for employees under group health plans without running afoul of the ADA’s voluntariness requirements for medical exams.

In the closing minutes of 2015, a Wisconsin federal court issued an opinion in one of the first lawsuits filed by the EEOC that had challenged an employer wellness program as an ADA violation. The resulting victory for the employer may cause the EEOC to rethink its wellness-incentive strategy.

WIRTW #395 (the “rock 'n' roll grade school” edition)

It’s been a bit since I’ve shared any music from Norah’s gigs, so I thought I’d share a clip of three songs from her show last weekend (blue hair and all) with the School of Rock Jr. Headliners.


As for Norah’s bands, you have a few opportunities to see them live over the next few weeks (with more to be added):

• Jan. 16, Norah’s Psychedelic 60s show takes the stage at the Music Box Supper Club, beginning a 3 pm, with a short set by Donovan’s Rock 101 band leading off at 2:30.
• Jan. 23, Norah’s Psychedelic 60s show again performs at the Music Box Supper Club, beginning a 1 pm, followed by Donovan’s Rock 101 band at 2:30.
• Feb. 7, the School of Rock Jr. Headliners continue their monthly residency at Coda, in a pre-Superbowl show from 1 – 4.
• Feb. 13, the Jr. Headliners play the Tri-C High School Rock-Off Finals, on the main stage at the Rock & Roll Hall of Fame.

Here’s the rest of what I read this week:

And we have an early leader for worst employer of the year

A federal court judge has ordered a Philadelphia-area publishing company, American Future Systems, to pay its employees $1.75 million in unpaid wages. The company’s sin? It docked its employees for time spent going to the bathroom.

According to OSHA, Ohio is one of the unsafest states for workers

Did you know that OSHA publishes statistics for high-value enforcement cases? Each week, OSHA updates a state-by-state list of enforcement cases with initial penalties above $40,000.

Since we just wrapped 2015, I thought it was a good time to take a peak at the list to grab an annual snapshot.

Don’t ignore reasonable accommodations in the application process

Eliminating barriers in recruitment and hiring is one of six national priorities identified by EEOC’s Strategic Enforcement Plan. Large national employers provide the EEOC with a soapbox to broadcast this agenda. Thus, a lawsuit filed by the agency against McDonald’s Corp. for its alleged refusal to interview a deaf job applicant is a perfect ADA-storm.

NLRB champions the lone wolf in latest protected concerted activity decision

In Whole Foods Market [pdf], the NLRB held that the employer’s rules prohibiting employees’ use of recording devices in the workplace violated their rights to engage in protected concerted activity under the National Labor Relations Act.

The unlawful policies read as follows:

It is a violation of Whole Foods Market policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received.…

The 12 Days of Employment Law Christmas (2015 Edition)

For the past three Noels, I published “The 12 Days of Employment Law Christmas.” As this has become a year-end tradition at the blog, I’m sharing it again (with updated links). If you’re feeling brave, post a video of yourself singing along.

Have a great end to your 2015, and happy holidays, regardless of your holiday of choice.

(Some musical accompaniment)

On the first day of Christmas,
my employment lawyer gave to me
a lawsuit for my company.

 

On the second day of Christmas,
my employment lawyer gave to me
2 trade secrets,

and a lawsuit for my company.

 

On the third day of Christmas,
my employment lawyer gave to me
3 FMLA notices,

2 trade secrets,
and a lawsuit for my company.

 

On the fourth day of Christmas,
my employment lawyer gave to me
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

On the fifth day of Christmas,
my employment lawyer gave to me
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the sixth day of Christmas,
my employment lawyer gave to me
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

On the seventh day of Christmas,
my employment lawyer gave to me
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

On the eighth day of Christmas,
my employment lawyer gave to me 
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

On the ninth day of Christmas,
my employment lawyer gave to me
9 OSHA penalties,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

On the tenth day of Christmas,
my employment lawyer gave to me
10 labor campaigns,
9 OSHA penalties,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

On the eleventh day of Christmas,
my employment lawyer gave to me
11 personnel manuals,
10 labor campaigns,
9 OSHA penalties,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

On the twelfth day of Christmas,
my employment lawyer gave to me
12 disabled workers,
11 personnel manuals,
10 labor campaigns,
9 OSHA penalties,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

 

Merry Christmas!

I'll be back on January 4, 2016, to kick off the new year.

 

7th Circuit delivers employers an early Christmas gift in EEOC severance agreement case

In EEOC v. CVS Pharmacy, Inc., the EEOC challenged what I have previously described as several garden-variety, boilerplate provisions in a severance agreement. I’ve also previously predicted that a win for the EEOC in this case would be ruinous for employers.

Late last week, the 7th Circuit affirmed the decision of the district court, which had dismissed the EEOC’s lawsuit based on its failure to conciliate with CVS prior to filing suit.

And, the 7th Circuit agreed, affirming the case on those grounds. But, the 7th Circuit also went further, and offered hope to employers this federal courts will not stand for the folly the EEOC is trying to put forth by filing this type of case.

WIRTW #394 (the “re-gift” edition)

What do you do with gifts that are less than desirable? John Oliver shares his ideas on the dos and don’ts of re-gifting.

I won’t get mad if you re-gift this post or any others of mine to your reader or followers.

Here’s the rest of what I read this week:

What Star Wars teaches us about employee relations #TheForceAwakens

My earliest cinematic memories involve Star Wars.

I don’t really remember seeing A New Hope in the theater (I was only 4 years old), but I know I did. I vividly remember watching The Empire Strikes Back with my dad at the Nashaminy Mall. The theater was packed, we were stuck behind two towering men, and I watched with my head peaking between their seats. That’s where my jaw hit the floor when Vader proclaimed that he was Luke’s father. And, with my fandom at a crescendo, I remember my parents pulling me out of school on opening day of Return of the Jedi so that we could wait in line to ensure our seats.

Thank god for Fandango, because Donovan, with his now one-tracked Star Wars mind, and I can see The Force Awakens without disrupting his schooling. Saturday afternoon, I will experience the pure joy of introducing my son to a new Star Wars movie.

The premier of Episode VII has got me thinking, what can Star Wars teach us about employment law?

Why we accommodate employees

Lyerly v. Southwest Airlines (S.D. Tex. 12/9/15) provides a textbook example of why we accommodate employees. This employer bent over backwards to accommodate an ill employee, and, as a result, had little difficulty in defeating her subsequent disability-discrimination lawsuit.