A refresher on pre-employment medical examinations

Do you require medical exams of applicants before they start working for you? If so, do you know the rules that the ADA requires you follow?

Last month, the EEOC settled a lawsuit it brought against a Florida staffing firm for alleged unlawful pre-employment medical exams under the ADA, which serves as a good reminder for employers of these rules.

Where is the line between lawful (but awful) bullying and unlawful harassment?

Consider the following allegations of sexual harassment levied by Pamela Daniels, a secretary in the Pike County Prosecutor’s Office, against her boss, County Prosecutor Charles Robert Junk.

And then let’s answer the age-old question—lawful (but awful) bullying or unlawful harassment?

WIRTW #475 (the “girls rock” edition)

I’m not sure why, but when I pictured having a daughter I always imagined that she’d be into and frilly things, Barbies, and ballet. I guess it’s because it’s “what girls do”? This is so not Norah. She is a rock ‘n’ roll chick. She loves punk music, flannel shirts, the color black, and her telecaster. And I could not be more proud of her.

And she’s also a girl, playing in what has predominantly been a male dominated space. She’s even newly fronting a band of four guys (stay tuned, more on this exciting news in the coming weeks).

Thankfully, she’s always had really strong female role models at School of Rock (thank you Quinn, Erin, Kayleigh, Maddie, and Taylor). I’m also always on the lookout for new female-led bands for her to check out. That’s how we discovered Diet Cig, for example, and I recently discovered The Regrettes (fronted by a 16-year-old, another band worthy of your attention).

For these reasons, a story the New York Times ran last week caught my eye. Rock’s Not Dead, It’s Ruled by Women is a roundtable discussion with 8 women rockers, including Alex Luciano from the aforementioned Diet Cig, Shawna Potter of War on Women (one of Norah’s recent discoveries, thanks to her SoR Punk show), and Sadie Dupuis of Speedy Ortiz. They discuss their role as women working in a male dominated industry, their responsibility as role models, and how gender-based stereotypes still dominate and resonate.

It’s a great read.

As for my 11-year-old rocker (and her 9-year-old brother), they have shows coming up in the next two weeks:

• Sept. 17, Donovan does The Beatles at 3 pm, and Norah does punk at 5 pm.
• Sept. 23, Donovan re-does The Beatles at 1 pm, and Norah the punk thing at 3 pm.

All shows are at Slim & Chubby’s, 12492 Prospect Rd., Strongsville.

Here’s what else I read this week:

Baring it all on social media and hiring

I’ve never written about the time I stripped naked in front of my entire law school … until now.

Well, here we go.

Dads are parents, too — baby bonding and sex discrimination

Should new dad’s receive the same amount of time off from work to bond with their newly born child as do women? That is the question at the center of a lawsuit the EEOC recently filed against cosmetics giant Estée Lauder.

Is the DOL’s white-collar salary test DOA?

Late last week, a federal judge in Texas struck down the Department of Labor’s attempt to raise the salary test for the Fair Labor Standards Act’s white-collar exemptions from $455 per week to $913 per week.

The court held that because the statute defines the administrative, executive, and professional exemptions based on their duties, any salary test that renders the duties irrelevant to the analysis is invalid. Thus, because the Obama-era $913 salary test could overshadow the exemption’s duties in the execution of the exemptions, the new salary level is invalid.

I founds footnotes 5 and 6 to be very interesting, but I’m not sure the position they advance are intellectually consistent with the bulk of the opinion.

Compare:

This opinion is not making any assessments regarding the general lawfulness of the salary-level test or the Department’s authority to implement such a test. Instead, the Court is evaluating only the salary-level test as amended by the Department’s Final Rule. ... During questioning at the preliminary injunction hearing, the Court suggested it would be permissible if the Department adjusted the 2004 salary level for inflation. [fns. 5 and 6]

-vs-

The Final Rule more than doubles the previous minimum salary level. By raising the salary level in this manner, the Department effectively eliminates a consideration of whether an employee performs “bona fide executive, administrative, or professional capacity” duties. ... Nothing in Section 213(a)(1) allows the Department to make salary rather than an employee’s duties determinative of whether a “bona fide executive, administrative, or professional capacity” employee should be exempt from overtime pay. [opinion]

To me, the only way to read the opinion is that any salary test exceeds the DOL’s authority to implement the EAP exemptions (fns. 5 and 6 notwithstanding). Alternatively, if the only salary test that will pass muster is one that is so low that anyone who meets the duties test also must, de facto, meet the minimum salary threshold (the status quo of $455, adjusted for inflation to $592), why have a salary test at all?

Thus, in the opinion of this blogger, the DOL’s salary test is DOA. Now, let’s wait for the appeal and see what the court of appeals has to say on this issue.

WIRTW #474 (the “I’m from” edition)

My 11 year old daughter is a unique soul. She’s always been older and wiser than her years suggest, but I don’t think I’ve ever appreciated exactly how much older or wiser until I read her “I’m from” poem.

She just entered 6th grade, and this poem was her first ever middle-school assignment. This year's language arts curriculum is focused around the idea of identity. Her assignment was to craft a poem defining her own personal identity—where she’s from.

The result floored me. I cried real tears. Not just out of joy that my 11-year-old could produce something of such beauty, but that this beauty reflects a deep understanding of who she is.

So perfectly Norah.

Here’s what else I read this week.

BREAKING: federal judge strikes down FLSA white-collar exemption salary test

Ding, dong, the DOL’s salary test for white collar exemptions is dead (sort of).

A Texas federal judge has held that the Department of Labor improperly used a salary-level test to determine which white-collar workers are exempt from overtime compensation.

That time Justin Bieber’s “L’il Biebers” caused a sex discrimination lawsuit

File this one under the category of I can’t make this stuff up. Apparently, Justin Bieber’s testicles are at the center of a recently filed sex discrimination lawsuit.

The 17th nominee for the “worst employer of 2017” is … the square non-sparer

A female public relations exec is suing her former employer for sex discrimination. Her claim—that her male bosses limited her access to toilet paper the bathroom because, as a female, she used more than her male counterparts, and was fired after she complained about the discrimination.

An attendance love story

14 years ago today, my wife and I married.

The ceremony started at 11 am, and by 10:55 I was nervous. Not your normal, “I’m about to get married,” nervous, but the, “What the hell, we start in 5 minutes and my bride-to-be isn’t here yet” nervous. It was 2003, before the prevalence of iPhones. Without a cell phone on me, I just had to take it on faith that Colleen was on her way. Nevertheless, I was most definitely jittery.

Letter to employees during EEOC investigation may violate discrimination laws

Suppose an employee files an EEOC charge of discrimination against you. And, further suppose that during the investigation, you receive a request from the agency for the name and contact information for all similarly situated employees. You correctly assume at the EEOC may use the information to contact your employees for investigatory interviews.

Do you—

1. Allow the EEOC process to proceed; or
2. Inform your employees of the nature of the charge, the EEOC investigation, that the EEOC may contact them, and that their participation would be 100 percent voluntary?

If you choose option “2”, you may have violated federal discrimination laws, at least according to a Connecticut federal judge.

WIRTW #473 (the “sweet children” edition)

Last week I offered by eight-word meaning of life: Be kind to others and do good things.

Today, I further offer “Corollary One” to said meaning of life: And do all you do with joy.

Earlier this week, I took my family to see Green Day (easily the best arena concert I’ve ever attended). Yet, as good as Green Day was (and they really were that good), my personal highlight was looking right to bear witness to how much pure fun Norah was having. This is what pure joy looks like.

I had a great time seeing @greenday, but not as great as this girl.

A post shared by Jon Hyman (@jonhyman) on Aug 21, 2017 at 8:55pm PDT

Here’s what I read this week:

The 16th nominee for the “worst employer of 2017” is … the rapid retaliator

The EEOC has sued an Atlanta cemetery company for firing an employee the day after the agency interviewed her as part of an on-going investigation.

NLRB offers rare win for employer confidentiality policy

It’s been a rough few years for workplace policies at the NLRB. From communication policies, to social media policies, to conduct policies, to confidentiality policies, the NLRB has, time and again, struck down facially neutral, garden variety employer policies as overly restrictive of employees’ section 7 rights to engage in protected concerted activity under the National Labor Relations Act.

Employer wins on this issue have been few and far between. As a result, when we get a win, it’s reason to celebrate. Well, employers, pop those champagne corks, because earlier this week, in Macy’s, Inc. [pdf], we received just such a win.

The 15th nominee for the “worst employer of 2017” is … the one-day leave denier

According to a lawsuit the EEOC recently filed against Macy’s, Inc., the retailer allegedly violated the ADA by firing an employee instead of granting her a one-day absence for a medical emergency.

A deep dive on social media, employee privacy, and the workplace

When history closes its book on 21st century America, Charlottesville may go down as one of its most significant chapters. If justice has any place in our world, it will prove to be a turning point on race relations in our nation. Or at least that is my hope. In the wake of this tragedy, journalists have spilled, and will continue to spill, a lot of ink.

One of the favorite articles I read in the past week was, Can an employee be fired for activities outside the workplace?, by Kathryn Moody at HRDive.com (and not just because the article is an interview with me; thanks to Kathryn for the interview). 

WIRTW #472 (the “back to school” edition)

Happy back to school @lakeridgeacademy for Norah (6th) and Donovan (3rd).

A post shared by Jon Hyman (@jonhyman) on Aug 16, 2017 at 8:26am PDT

Here’s what I read this week:

The meaning of life (in eight words)

A few months back, while riding in the car (we do a lot of riding in the car, mostly to and from music lessons, rehearsals, and gigs), I fielded a question from the back seat. I don’t recall the context of the conversation, or the genesis of the question that followed.

Norah asked, “What’s the meaning of life?”

Pretty deep for a then 10-year-old.

I paused, thought for a second (or three), and answered.

How much wasted work-time is too much?

According to a recent survey conducted by OfficeTeam, on average, employees spend 8 hours per workweek on non-work activities.

What does this non-work time look like?