Poll: how do you handle “Super Bowl Fever”?

Today is Super Bowl Monday, the day after the big game. The game ended after 10 pm last night, and parties went much later. In light of this, consider these stats from Kronos:

• An estimated 17.5 million U.S. employees say they may skip work today. 
• Of those employees, 11.1 million say they will likely use preapproved time-off.
• Another 4.7 million plan to call in sick even though they’re really not ill.
• 1.5 million say they will not tell anyone they’re not coming in and just won’t show up.
• 11.1 million employees plan to go to work, but will show up late.

So here’s my question for everyone. How will your business handle the “Super Bowl Fever”?

“Hairstyle discrimination” laws: a solution in search of a problem

I fully embrace the irony of a local news broadcast holding me out as the expert on hair discrimination. 👨🏻‍🦲

Irony notwithstanding, here I am on last night’s 6 o’clock news discussing why we don’t need to ban workplace hairstyle discrimination. (Big thank you to WEWS’s Mike Brookbank for reaching out and for the interview.)

EEOC settlement provides expensive lesson on including social media in your anti-harassment policies and training

EEOC v. Nabors Corp. Services involves serious allegations of racial harassment, including the following.

Being addressed at work by co-workers with racial slurs such as “nigger”; being exposed at work to offensive, racially derogatory social media images and material circulated by co-workers and managers; being exposed to racist graffiti, including racial slurs and derogatory drawings concerning Black persons at company facilities in and around Pleasanton, Texas; being referred to as members of the “colored crew” by employees and managers; and in some instances, being subjected to intimidation and physical threats by employees because of race, Black.

The company recently resolved this case, agreeing to pay 10 employees a total of $1,225,000 to settle the EEOC’s claims of racial harassment, race discrimination, and retaliation.

No-fault attendance policies offer no cover when the ADA or FMLA are involved

An employee suffering from epilepsy, migraines, and heart condition asks (with a medical note) for two unpaid days off from work unpaid to treat symptoms related to her disabilities. Instead of granting the leave, the employer assigns the employee points under its no-fault attendance policy and fires her for exceeding the allowable number of attendance points. The EEOC has sued the employer, alleging disability discrimination.

It is an inexcusable sin for an employer NOT to have an anti-discrimination policy

There are some employment policies that you can get away with not having. An anti-discrimination policy is not one of them.

In Hubbell v. FedEx SmartPost (decided yesterday by the 6th Circuit), FedEx learned this lesson the hard way.

NLRB offers significant and important guidance on its new(ish) employee handbook rules

It’s been just over 18 months since the NLRB decided Boeing Co., perhaps its most significant decision in decades. It rewrote more than a decade of precedent by overturning its Lutheran Heritage standard regarding when facially neutral employment policies violate the rights of employees to engage in concerted activity protected by section 7 of the National Labor Relations Act.

In Boeing, the Board scrapped Lutheran Heritage’s “reasonably construe” test (a work rule violates section 7 if an employee could “reasonably construe” an infringement of their section 7 rights) with a test that balances “asserted business justifications and the invasion of employee rights” by weighing “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the requirement(s).” It was a huge win for employers drafting and issuing workplace policies.

Employers are making new dog ownership a little less ruff by offering “pawternity” leave

In three days, my family grows by one. We’re adding a puppy.

My wife and kids have been clamoring for a new dog for a year. Loula (our current dog) is seven years old, and they don’t want to be in a position of not having a dog in our family. Plus, we don’t want to wait until Loula’s too old to tolerate the energy of a new puppy.

How to fire an employee

The Wall Street Journal recently asked this simple question:

What's the Best Way to Fire Someone?

I have some thoughts.

Bathroom conversations aren't private conversations

Michael Woods, a mortgage banker at Quicken Loans, was having a bad day at work. A customer Woods had helped four years ago had been trying to get in touch with a Client Specialist; the company routed the call to Woods because of their prior relationship. He aired his grievance to a co-worker, Austin Laff, while they were in the bathroom together. "The client should get in touch with a fucking Client Care Specialist and quit wasting my fucking time."

Jorge Mendez, a supervisor, overheard this conversation from a stall. He responded with an all-employee email reminding everyone of proper conduct in public areas. "Never, EVER, should we be swearing in the bathroom especially about clients."

What a lawful "civility" policy looks like under the NLRB's Boeing test

Consider and compare the following workplace civility policies:

Commitment to My Co-Workers

• I will accept responsibility for establishing and maintaining healthy interpersonal relationships with you and every member of this team.
• I will talk to your promptly if I am having a problem with you. The only time I will discuss it with another person is when I need advice or help in deciding how to communicate with you appropriately.
• I will not complain about another team member and ask you not to as well. If I hear you doing so, I will ask you to talk to that person.
• I will be committed to finding solutions to problems rather than complaining about them or blaming someone for them, and ask you to do the same. 

-vs-

Blogging 

Blogging outside of the hospital must not include … disparaging comments about the hospital.

You're never too small to have an HR department

43 percent of American employees work for companies with 50 or fewer employees. I raise this statistic because it is almost a guarantee that many of these small businesses operate without a dedicated HR department or HR personnel.

Earlier this month, the EEOC settled a sexual harassment and retaliation lawsuit it had brought against several IHOP franchises operating in New York and Nevada. The allegations were truly awful, including misbehavior such as unwanted touching of female employees' buttocks and genitalia, graphic comments about sexual genitalia, invitations to engage in intercourse, and vulgar name calling, perpetrated by both managers and co-workers.

Employment policies in the polar vortex

How frigid are the temperatures going to be in Northeast Ohio today? Just about everything is closed. Even the post office suspended mail delivery. Just because you remain open for business does not mean that your employees will be in a position to get to work. Pipes burst. Furnaces break. Cars die. And with schools closed, many parents need to remain home with their children.

In light of these historically low temperatures, here are five key considerations for workplace severe-weather policies, including including how to handle issues such as attendance, wage and hour, and telecommuting:

What's is the dumbest workplace policy you've ever encountered?

I spent my day yesterday mediating a case before the Ohio Civil Rights Commission. The mediation took place in a conference room on the 8th floor of the state office building in downtown Cleveland. The hardest part of my day? Believe it or not, it was simply getting to the mediation.

Your 2019 Employment Law Compliance Checklist

Today is the start of the first full week of 2019. Which means it's a perfect time to take a step back and review your efforts at HR and employment-law compliance for the coming year.

This list is not mean to be complete or exhaustive, but should provide a high level look at the top 20 issues that you should be reviewing this year, and every year for your business.

What employment sins are you atoning for this year?

Yesterday was Yom Kippur, the Jewish Day of Atonement.

For the uninitiated, it is the day on which we make peace with God for all of the sins we've committed over the past year. On Rosh Hashanah God writes each person's name in Book of Life. Over the next 10 days, Jews seek forgiveness for wrongs done against God and our fellow humans. During Yom Kippur, each individual makes their personal petitions to God, and hopes for forgiveness for the upcoming year. If all goes well, when God closes the Book of Life at the end of Yom Kippur, your name remains and your soul is safe for another year.

I explain it to my Catholic children like this. Catholics (are supposed to) confess their sins each week. Jews save them up one shot on Yom Kippur. We've yet to try the chicken swinging; they're not ready for it. (I'm not sure I am, or ever will be, either).

Do you have employee-theft insurance?

The Philadelphia Insectarium and Butterfly Pavilion, a science museum showcasing one of the largest living arthropod collections in the United States, recently suffered a catastrophic loss. Crooks heisted over 80% of its collection — 7,000 of its rare insects, lizards, and snakes, valued at over $40,000.

According to The New York Times, police believe this to have been an inside job. Three current or former museum employees are the suspects. The evidence? Security-camera footage, plus staff uniforms hung from knives that had been stabbed into a wall.

Do you really want to be the employer that bans your employees from wearing Nike products?

Last week, Nike launched its new ad campaign featuring (former) NFL quarterback Colin Kaepernick. He's most famous for being the first NFL player to kneel during the national anthem. As a result, he's become a lightning rod around our national conversation about race relations. He claims the NFL has blackballed him because of his outspokenness on the issue.

I ❤️ my wife, and I ❤️ attendance policies

On August 29, 2003, I married my wife.

The ceremony was to start 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. With no cell phone on me, I just had to have faith that Colleen was on her way. Nevertheless, I was most definitely jittery.

Protecting your business from an "Omarosa": workplace recordings and the law

Omarosa Manigault-Newman, formerly a contestant on Donald Trump's The Apprentice and also formerly an employee in President Trump's White House, secretly recorded Chief of Staff John Kelly firing her.

In 38 states plus the District of Columbia, this surreptitious recording would be perfectly legal.

NLRB clarifies its new employee handbook rules

Late last year, in Boeing Co., the NLRB rewrote more than a decade of precedent by overturning its Lutheran Heritage standard regarding when facially neutral employment policies violate the rights of employees to engage in concerted activity protected by section 7 of the National Labor Relations Act.

The Board scrapped Lutheran Heritage‘s “reasonably construe” test (a work rule violates section 7 if an employee could “reasonably construe” an infringement of their section 7 rights) with a test that balances “asserted business justifications and the invasion of employee rights” by weighing “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the requirement(s).”