WIRTW #420 (the “live” edition)

It’s been a while since I’ve given an update on upcoming speaking gigs, and I have a few upcoming. So, without further adieu.

• On July 27, I will be delivering Hot Topics in Wage-Hour Law for 2016 for the Cleveland HR Star Conference.
• On September 27, I’ll be speaking at Meyers Roman’s next Breakfast Briefing, The Department of Labor’s Wage & Hour Rule Changes—Are you Ready?! The free event will run from 8 – 10 am at the Cleveland East DoubleTree, and 2 hours of HRCI credits are pending. Email Sara Cox for more information or to RSVP.
• Finally, on November 15, I’m giving the Keynote at Workforce Focus on Law in Chicago. The topic—The Top 5 Mistakes Employers Make.

Please stop and introduce yourself if you're at any of these events. I love meeting my readers.

Here’s what I read this week.

Will work for beer

According to Boy Genius Report, archeologists in Iraq recently discovered a 5,000-year-old Mesopotamian tablet, which the site artfully describes as a “pay stub for beer due.” If the interpretation of the tablet is to be believed, ancient Mesopotamians were paid in beer for their labor.

“That was 3000 B.C., and this is 2016 A.D.,” you’re saying to yourself. “What possible relevance does this story have to modern employers?” The answer may surprise you.

$15 minimum wage is unconstitutional, says Ohio Attorney General

The drive to push local minimum wags in Ohio municipalities to $15 an hour may have hit a significant snag—Ohio’s Constitution.

According to an advisory opinion [pdf] issued by Ohio Attorney General Mike DeWine, a municipal ordinance may not require an employer to by a to pay its employees an hourly minimum wage rate that is in excess of the statewide hourly minimum wage rate.

Employment at-will is dead

Last week, I suggested that the “FMLA is not a personnel-file eraser.”

One does not return from an FMLA leave with a clean performance slate. Instead, one returns with the same warts with which they left. And, if those warts merit discipline, or (gasp) even termination, then so be it.

In response, one commenter cautioned about being too cavalier with discipline or termination in the wake of an FMLA leave.

http://dilbert.com/strip/2015-09-08

WIRTW #419 (the “ramen” edition)

Today I bring you greatest (only?) love song ever written about ramen noodles.


Here’s what I read this week.

FMLA does not excuse poor performance

Earlier in the week, I discussed Tilley v. Kalamazoo, in which an employer took one on the chin for disciplining an employee for not doing his job while on an FMLA leave. That case, however, does not mean that the FMLA excuses prior poor job performance, or that an employer must ignore or excuse an employee’s performance deficiencies once an employee takes FMLA leave. Indeed, as Checa v. Drexel University [pdf] points out, it’s just the opposite.

Your employees are social media-ing at work, and there's not a damn thing you can do about it

A recent survey conducted by the Pew Research Center confirmed what I have long thought. Your employees are using social media a work — 77 percent of them. And I believe even that number is low.

http://www.pewinternet.org/2016/06/22/social-media-and-the-workplace/pi_2016-06-22_social-media-and-work_0-01/

FMLA leave means leave, period.

FMLA leave means leave. That is, an employee exercising rights under the FMLA to take protected time-off from work must be relieved of their job functions, and an employer cannot hold such an employee responsible for job tasks uncompleted during such a leave of absence.

The attack on the NLRB's new joint-employer standard intensifies

Last week was a good week for opponents of the NLRB’s new, and more liberal, joint-employer standard, announced last summer in Browning-Ferris Industries of Calif. 

WIRTW #418 (the #OneForTheLand edition)

I couldn’t see much at Wednesday’s Cavs victory parade. A late start + 1.3 million people + an unwillingness to wade into the masses = soaking in the atmosphere on the periphery.

Consequently, this was the best thing I saw at the parade. Cleveland proud!

A video posted by Jon Hyman (@jonhyman) on Jun 22, 2016 at 2:04pm PDT

Here’s what I read this week:

Don’t forget about confidentiality when training your employees on social media

I’m not getting Snapchat. Maybe I’ve finally found a social channel that doesn’t fit me. Or, maybe I’m just too late to the game. Or, maybe with Twitter, and LinkedIn, and Facebook, and Instagram, and this blog, I don’t have the time or attention for one more social channel.

You know who does get Snapchat? Apparently some staffers of Australia’s Labor Party, who snapped some screens of their party’s confidential campaign strategy.

EEOC pushes NLRB to find common ground on workplace harassment

It’s no secret that I’m not a fan of the NLRB’s expanded coverage of protected concerted activity. One area over which I’ve been particularly critical is the NLRB’s position on the confidentiality of workplace investigations and workplace civility policies.

Now, the EEOC has also taken up the challenge.

On LeBron James and boomerang employees

LeBron James is the world’s greatest boomerang employee. He left Cleveland for Miami in 2010, returned in 2014, and delivered The Land our promised title on June 19, 2016.

What is a boomerang employee?
 

We are the Champions!

Cleveland wakes up the this morning basketball champions of the world. While I’m not a native Clevelander, I’ve lived here long enough to understand the pain and suffering of my town. I’ve been here for the Indians in ‘95 and ‘97, the return and floundering of the Browns, the Cavs in ‘07, the Decision, the Return, and last year’s (valiant but still a) defeat. And last night I celebrated with my family and cried tears of joy as I watched the Cavs complete what most thought was not possible — not only beating the defending champs and the team who won more regular-season games than any other in history, but also doing so after being down 3-1 and having to win two on their home floor.

WIRTW #417 (the “virgin” edition)

That time your boss caught you sleeping at work and took a selfie with you.

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

EEOC on pregnancy-related limitations and restrictions at work

It’s been nearly a year since the EEOC updated its administrative guidance on pregnancy discrimination to account for the Supreme Court’s holding in Young v. UPS regarding an employer’s obligations to accommodate its pregnant workers.

In case the EEOC’s guidance is too dense for you to digest, the agency has chosen to commemorate its participation in the White House United State of Women Summit with the publication of two new pregnancy-related resources.

12 mistakes employers make in paying non-exempt workers

Given that on December 1, 4.2 million exempt workers will transition to non-exempt status, it is timely that the Richmond Times-Dispatch though to share 9 mistakes employers make in paying hourly/non-exempt workers. I’ve added numbers 10, 11, and 12.

Philip Miscimarra is mad as hell, and you should be too!

NLRB Member Philip Miscimarra is mad as hell about the Board’s current position on employee-handbook policies and protected concerted activity, and he’s not gonna to take this anymore.

6th Circuit says illegal retaliation doesn’t meet threshold for constructive discharge. Wait, what?!

Henry v. Abbott Laboratories (6/10/16) [pdf] is what I would call a curious case, and one that I plan to liberally use any time I’m defending a case in which claims both of discrimination/retaliation and constructive discharge are asserted.

WIRTW #416 (the “420”) edition

Earlier this week, Governor Kasich legalized medical marijuana in Ohio. The law takes effect in early September. Ohio becomes the 25th state to enact a comprehensive legal medical marijuana program.

The law will allow people with the following medical conditions to use marijuana: HIV/AIDS, amyotrophic lateral sclerosis (ALS), Alzheimer’s disease, cancer, chronic traumatic encephalopathy (CTE), Crohn’s disease, epilepsy or another seizure disorder, fibromyalgia, glaucoma, hepatitis C, inflammatory bowel disease, multiple sclerosis, pain that is either chronic and severe or intractable, Parkinson’s disease, post-traumatic stress disorder, sickle cell anemia, spinal cord disease or injury, Tourette’s syndrome, traumatic brain injury, and ulcerative colitis.

Importantly, employers retain the right to fire medical marijuana users if the use violates a drug-free workplace or zero tolerance policy.

For more on what this means for Ohio employers, click here.

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