Critical employer law reforms move forward in Ohio House

Yesterday, Ohio House Bill 2, favorably reported out of the House Economic Development, Commerce, and Labor Committee. This is the important first legislative step to getting this bill passed and enacting necessary changes to Ohio’s employment discrimination law. HB 2 now moves onto consideration by the full House.

You can read all of the details at the Ohio Chamber’s All for Ohio Blog, including the key provisions of the legislation, and, most importantly, why the bill’s opponents shifted their stance to “neutral.” With opposition moving out of the way, I am cautiously optimistic that HB 2 will become law this legislative session. Stay tuned.

The 9th nominee for the “worst employer of 2017” is … the harassment ignorer

I was going to blog this morning about President Trump’s firing of FBI Director James Comey, and how, if you’re a CEO, and your company is investigating you for some misconduct (or even worse, potential illegal activity) related to your job, it’s bigly not good to fire the person leading the investigation, no matter the excuse you trump up.

Instead, however, today’s nominees are Target Corporation and MarketSource, (which operates mobile-phone kiosks in Target stores). Why do they make my list? Take a look at Abdel-Ghani v. Target Corp. (8th Cir. 5/5/17) [pdf].

Celebrating a decade of the Ohio Employer’s Law Blog

This is why it matters who runs the NLRB

In NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that employees covered by a collective bargaining agreement may request the presence of a union representative during an investigatory interview that the employee reasonably believes may result in disciplinary action. In the 42 years hence, the Board has vacillated on the issue of whether Weingarten rights also extend to non-union employees. For example, in 2000, in Epilepsy Foundation of Northeast Ohio [pdf], the Clinton-era Board found that employees in non-union settings have Weingarten rights to a coworker representative during investigatory interviews. More recently, however, the Bush-era Board, in IBM Corp., concluded the exact opposite, that, in light of certain policy considerations, the Board would no longer find that employees in non-union workplaces have the right to a coworker representative.

Which brings us to 2017.

WIRTW #460 (the “my favorite week of the year” edition)

This week is my favorite week of the year, because five nights from now I’ll be standing front and center at the Beachland Ballroom watching the Old 97’s. Yes, I know I’m a fanboy. And you know what? I don’t care. I’ve come to grips with it. I can’t wait to hear live for the first time most of their latest release, Graveyard Whistling, including this destined to be classic, “Jesus Loves You”.


Come see what all the fuss is about. Tickets are only $20, and, for now are still available, but will sell out before the lights dim Wednesday night. And, if you’re not in Cleveland, please support these guys by checking them out when they come through your town, this spring, summer, or beyond.

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Update: Earlier this week, the House passed the Working Families Flexibility Act. Much of the press surrounding this bill frames it as a law that will take away overtime pay from employees. Click here to read why this spin is flat out wrong (hint: an employer cannot force comp time on any employee, and an employee must agree, in writing, to accept comp time in lieu of overtime pay).

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Here’s what I read this week:

6th Circuit says you can’t spell “cat’s paw” without F-M-L-A

It’s been six year since the Supreme Court decided, in Staub v. Proctor Hosp., which validated the “cat’s paw” as a valid theory of liability in discrimination cases. The “cat’s paw” seeks to hold an employer liable for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence over the ultimate decision maker.

An open issue in Staub‘s wake is whether other employment laws also apply the cat’s paw. For example, what about the FMLA? In Marshall v. The Rawlings Co. (4/20/17), the 6th Circuit concluded that the cat’s paw does apply in FMLA retaliation cases.

10 key elements of any data security policy to safeguard your company

Yesterday, I told you that small businesses (less than 250 employees) suffered 31 percent of last year’s cyberattacks. What can you do to best protect your business (of any size) to repel an attack? Let me introduce you to the Data Security Policy, an essential component of any employee handbook now, and likely forever.

What should an effective Data Security Policy contain? Consider 1) consulting with a knowledgeable cybersecurity attorney; and 2) including these 10 components (c/o me, Travelers, and the U.S. Small Business Association):

If you think your small business isn’t at risk for cybercrime, think again

If you’ve ever spoken or though the words, “We’re too small to worry about a cyberattack,” you’d better think again.

According to a recent study, 31 percent of all cyberattacks in 2016 were directed at companies with less than 250 employees.

Do I now have your attention? 

Wait, an employer can’t fire an employee on FMLA leave caught on Facebook on vacation?

Actual firing Facebook photo

Suppose you have an employee who takes FMLA leave for rotator-cuff surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. Or, more accurately the employee’s co-workers saw the photos and ratted him out to management.

So, what do you do?

WIRTW #459 (the “weeps” edition)

How did I not know this was a thing? Last summer, The Beatles released a remix of my favorite song of theirs, “While My Guitar Gently Weeps”. It commemorates the 10th anniversary of Cirque du Soleil’s Beatles’ show, LOVE (an absolute must-do if you find yourself in Vegas). The new arrangement is the final work of legendary Beatles’ produced George Martin before his passing.

(For what’s it’s worth, I prefer what many consider the definitive version of this song—from George Harrison’s 2004 induction into the Rock Hall—performed with zero Beatles, one spawn of Beatles, two Traveling Wilburys, and one beautiful and blistering Prince guitar solo—The New York Times has a wonderful account of that performance here).

Here’s what I read this week:

The top 6 employee handbook mistakes

Yesterday, I had a pleasure of presenting a webinar for The Builder’s Exchange: The Top 6 Employee Handbook Mistakes. For your viewing pleasure and educational enlightenment, I’ve embedded it below.

  The Top 6 Employee Handbook Mistakes

Congrats to Philip Miscimarra on his appointment as NLRB Chair

I’m on record as calling Philip Miscimarra “mad as hell,” referring to his scathing dissents in recent NLRB protected concerted activity cases. I also have it on good authority that while he and I agree that the NLRB has gone off the proverbial reservation in these cases, he is not, in fact, mad as hell.

Be that as it may, he has every reason today to be as happy as he can be.

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.

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.

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.

• Fox News (finally) fired Bill O’Reilly.
• Earnest Angley closed his buffet, which had for years illegally used the services of unpaid volunteers and child labor. Looks like he finally found something he could not save.

Who says there’s no justice in this world?

Here’s what else I read this week:

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.

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.

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:

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.

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: