WIRTW #429 (the "top 10" edition)

Blame it on the Labor Day holiday and the resulting short work week, but the labor and employment news has been a bit scarce this week. So, instead of my usual categorical breakdown of the week’s best posts, I am listing them as a (sort of) top 10.

Here are the top ten labor and employment law posts from this past week (not written by me, and not really in any particular order):

Free Speech, Social Media, and Your Job

One of the biggest misconceptions that employees hold is that the First Amendment grants them free speech rights in a private workplace. Quite to the contrary, the First Amendment right to free speech grants private-sector employees zero constitutional rights or protections.

Today, I bring you a guest post by Ellen Gipko of HubShout, which takes a deep look at this important issue, with a special focus on online speech and social media.

Fox Settles Sexual Harassment Suit with Gretchen Carlson

What do you get when you add a high profile sexual harassment suit, a highly compensated employee, and a well known target?

$20 million.

That is the number that Gretchen Carlson is receiving in settlement of her sexual harassment lawsuit against her former boss, deposed Fox News chief Roger Ailes.

Associational disability discrimination claims are rare, yet dangerous

I have been blessed with employers that are sympathetic to the fact that my son was born with some life-long medical issues. I’ve never had an issue taking time for a doctor’s appointment, or an unexpected illness, or the three weeks he spent inpatient at the Cleveland Clinic five (very) long years ago.

Some employees aren’t so lucky.

WIRTW #428 (the “science is fun” edition)

I never thought I’d be the parent of private school kids. I am a proud survivor of the School District of Philadelphia, and always assumed that my kids would also attend public school. Then we found Lake Ridge Academy. Without sounding like too much of an advertisement for the school, it was the best decision and investment we made for our family.

Case in point — the fifth grade starts every school year with an overnight science trip to Stone Lab, an Ohio State teaching and research lab on Lake Erie. They study marine life, fish (and dissect fish), otherwise explore nature, and bond. Norah reports that she’s been looking forward to the experience since, as a kindergartener five years ago, she saw the fifth graders leaving with their overnight bags. By the looks of things, she’s not disappointed with the experience.

We made the 10:30 ferry! #millerboatline #learningisfun #stonelab pic.twitter.com/OCDmrJc0D9

— LS Technology (@LRATechnology) September 1, 2016

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

The ADA and prescription meds: what you need to know

Can an employer include prescription medications in its drug screening of job applicants and employees? Here’s a good lawyer answer for you. It depends.

Last week, the EEOC announced that it had sued an Arizona car dealership for disability discrimination after it rescinded a job offer when a pre-employment drug test revealed a prescription drug used to treat a disability.

Did the NLRB do more harm than good by permitting teaching and research assistants to organize?

Last week, in Trustees of Columbia University [pdf], the National Labor Relations Board upended decades of precedent by holding that federal labor law covers graduate and undergraduate teaching assistants, and graduate research assistants. This case has received wide spread national coverage (such as here and here). It is academically and politically interesting, and worth your time to read even if your business doesn’t involve academia. Moreover, the Board’s willingness to so easily depart from such well established precedent should be troubling to all employers.

The aspect of the decision I want to focus on in Member Miscimarra’s dissent, specifically his argument that because of the NLRB’s recent super-expansion of the doctrine of protected concerted activity, this decision will harm the very students it intends to protect. 

What employers can learn from EEOC's new Enforcement Guidance on Retaliation

Yesterday, the EEOC published its final Enforcement Guidance on Retaliation and Related Issues. It’s the agency’s first formal guidance on this issue since 1998, and was long overdue. After all, according to EEOC Chair Jenny R. Yang, “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.” She adds, “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”

An anniversary love story

Thirteen years ago today I married my best friend. I’m happy to report that the thunderstorms that rocked Cleveland on August 29, 2003, were not of the foreshadowing kind. It hasn’t been perfect. No marriage is. But every day is better because I get to experience it holding Colleen’s hand. And that makes us very, very lucky.

So, I thought I’d re-run a post from four years ago today. Enjoy.

WIRTW #427 (the “treat me like your mother” edition)

Someday I am going to convert this legal blog into a full-time dad/music blog. Until then, you get my semi-regular kids/musical posts. Like today’s.

The lot was definitely rocked today for School of Rock Strongsville’s fall show preview. This was my personal fav from Norah’s Jack White set - Treat Me Like Your Mother by The Dead Weather. Full shows on Sept. 17 and 25 @brotherslounge. @schoolofrockcle #sorcle @thirdmanrecordsofficial @thirdmanrecordscasscorridor #jackwhite #thewhitestripes #whitestripes #thedeadweather @thekills @amosshart

A video posted by Jon Hyman (@jonhyman) on Aug 21, 2016 at 6:07pm PDT

Here’s what I read this week:

OSHA's new Whistleblower Investigations Manual creates a huge burden for employers

Image via Lifehack.org
http://goo.gl/sn/VO1H

We typically think of OSHA in terms of workplace safety. Safety, however, is only a small part of what OSHA does. In fact, in addition to guarding our nations’ workers from workplace hazards, OSHA also enforces the anti-retaliation provisions of a veritable alphabet soup of federal statutes, such as the Sarbanes-Oxley Act, the Affordable Care Act, and the Clean Air Act, and the Wendell H. Ford Aviation Investment and Reform Act of the 21st Century (really, that’s a thing).

For most of those OSHA-enforced anti-retaliation statutes, OSHA has made employers’ anti-retaliation compliance a whole lot more difficult.

A wage/hour primer for employers with tipped employees

Employment Law 360 is reporting that a waitress is suing Walt Disney World for improperly taking a “tip credit” and paying her less than the minimum wage even though she spent significant time performing non-tipped work.

That story got me thinking that in the nine-plus years of this blog, I’ve never discussed how the FLSA impacts tipped employees. If you employ tipped workers, today is your lucky day.

Did the 7th Circuit finally kill McDonnell Douglas?

If you are an employment lawyer, the words “McDonnell Douglas” will bring a sentimental tear to your eye.

For the unfamiliar, the McDonnell Douglas is an evidentiary framework used in discrimination cases, which lack direct evidence of discrimination, to determine whether an employee’s claim should survive summary judgment and proceed to trial. It first asks whether the plaintiff can establish a prima facie case of discrimination—(i) s/he belongs to a protected class; (ii) s/he was qualified for the position; (iii) though qualified, s/he suffered some adverse action; and (iv) the employer treated similarly situated people outside of his/her protected class differently. If the plaintiff satisfies this minimal showing, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse action. Once the employer makes this articulation, the burden shifts again, back to the plaintiff to show that the employer’s reason is a pretext for discrimination.

It has existed for the past 43 years, until (maybe) last week.

Federal court's rejection of LGBT discrimination claim on religious grounds has scary implications

Last week, a Michigan federal judge rejected the EEOC’s claim that Title VII covers transgender status or gender identity as protected classes.

In EEOC v. R.G. & G.R. Harris Funeral Homes (E.D. Mich. 8/18/16) [pdf], the agency pursued a sex-discrimination claim on behalf of the Funeral Home’s former funeral director, Stephens, who is transgender and transitioning from male to female. The EEOC claimed that the Funeral Home “fired Stephens because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to [the Funeral Home’s] sex- or gender-based preferences, expectations, or stereotypes.”

The court rejected that claim on several grounds, including the Funeral Homes’s religious beliefs as protected by the Religious Freedom Restoration Act. This basis for the holding greatly troubles me.

WIRTW #426 (the “back to school” edition)

They are responsible for the matching outfits, not me. Norah and Donovan could not be happier to be back @lakeridgeacademy. #backtoschool #firstdayofschool #lakeridgeacademy

A photo posted by Jon Hyman (@jonhyman) on Aug 17, 2016 at 7:00am PDT

Here’s what I read this week:

Hard to believe that overt pregnancy discrimination still exists … yet it does

Pregnancy discrimination has been unlawful under federal law since 1978. You’d think by now employers would have learned their lesson—that women should not have to choose between being pregnant and being employed. Yet, this recent story from the Washington Business Journal suggests otherwise.

DOL wage/hour agreement with Subway raises legitimate joint-employer concerns

The Department of Labor recently unveiled an agreement with Subway through which the fast-food giant has agreed to assist its franchisees in their wage-and-hour compliance.

According to the DOL

the agreement builds upon the division’s ongoing work to provide technical assistance and training to Subway’s franchisees. It also provides an avenue for information-sharing where we will provide data about our concluded investigations with Subway, and they will share their own data with us, generating creative problem solving and sparking new ideas to promote compliance. When circumstances warrant, the franchisor will remind franchisees of the Wage and Hour Division’s authority to investigate their establishments and to examine records. It also specifies that Subway may exercise its business judgment in dealing with a franchisee’s status within the brand, based upon any history of Fair Labor Standards Act violations.

When the Department of Labor can’t even figure out the FLSA…

According to Employment Law 360, the U.S. Department of Labor has agreed to pay $7 million to settle claims that it failed to pay overtime to thousands of its employees:

“This is the agency that goes around fining all the private employers for doing the same thing that it just ended up paying $7 million to make go away,” said the union’s attorney.…

AFGE’s collective action-type grievance had accused the DOL of violating the Fair Labor Standards Act by failing to compensate employees eligible under the statute for suffer or permit overtime. Amid the 10-year legal fight, workers who were classified as FLSA exempt were moved back to FLSA-eligible, the union said.

ABA amends model professional conduct rules to prohibit discrimination. What took it so long?

Last week, during its annual meeting, the American Bar Association amended its model rules of professional conduct to incorporate employment discrimination into attorneys’ ethical mandates.

Model Rule 8.4 now reads as follows:

(g) It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

WIRTW #425 (the “tschüss” edition)

The Hymans did not take a vacation this summer. Instead, our vacation came to us.

Three years ago we hosted a foreign exchange student from Germany. Zarah entered our house as a stranger, and 10 months later left as our German daughter. Three weeks ago she and her sister, Alexa (German daughter number two) came for a visit. Today, they leave.

“Tschüss” is the German equivalent of “bye.” It’s light and informal. And, so, today, I say “tschüss” to Zarah and Alexa, because we know we will see them again soon (and even sooner on Skype), and danke to their parents (and our good friends), Michael and Karen, for sharing them with us for a few wonderful weeks.